1995 Legislative Session: 4th Session, 35th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, JUNE 6, 1995

Afternoon Sitting (Part 2)

Volume 20, Number 20

[ Page 15055 ]

The House resumed at 6:38 p.m.

[D. Lovick in the chair.]

Hon. P. Ramsey: In

Section A, I call Committee of Supply to consider the estimates of the Ministry of Transportation and Highways. In the House, I call Committee of the Whole on Bill 21.

TOBACCO SALES AMENDMENT ACT, 1995

(continued)

The House in committee on Bill 21; B. Copping in the chair.

section 1 (continued).

L. Fox: We were having rather a wide range of debate on this section, and I felt that it was appropriate to have some discussion about a definition that has been missed or perhaps should be in this

section which I would call a "reseller." Under this legislation we see a situation where I, being over 19 years of age, could go in to a tobacco outlet with somebody 16 years of age at my side. I can purchase cigarettes legally, and it's not illegal for me to then sell them to my friend who is under-age -- right there on the premises. I can even go further in reading this legislation and suggest that I may even be a proprietor of an incorporated company that has a licence to sell.

I could take the $6 or $7 out of my pocket, buy the cigarettes from the corporation, and there's nothing in this legislation which makes it illegal for me to turn around and sell that to a customer of the business but not of mine personally. I could sell it legally to that child who is under 19 years of age. That, to me, is a major flaw. In second reading I pointed out that this legislation is going to encourage entrepreneurship by those who would be less-than-credible individuals.

They could legitimately and legally carry on that activity without falling under the auspices of this legislation, and that is a major flaw.

The other issue in this legislation that I believe is a major flaw is that the penalty is only on the individual or the corporation which has the permit to sell tobacco. There is no onus on the under-age individual who is purchasing tobacco. While this might be well intended, in my view it cannot and will not work because of those two flaws. All it's going to end up providing is some well-paying jobs for a few individuals, but they really do not have the tools contained within this legislation for enforcement.

I would like to hear the minister's response.

Hon. P. Ramsey: I think the member makes some interesting points. Indeed, he is accurate. There is no prohibition in this legislation on what he calls resale. If a 19-year-old wishes to buy tobacco and sell it to his or her 12-year-old brother or sister, I don't think that this legislation would catch him. Nor have we made, as we have in this province in the case of alcohol products, possession of tobacco an offence under a certain age. That would be another way of approaching the same issue. It would simply say that not only is sale to a person under a particular age illegal but also that possession would be illegal, and that would capture a wide range of stuff.

[6:45]

Frankly, hon. member, we considered a wide range of more stringent measures here. We have approached what we believe is one of the sources of a substantial quantity of tobacco product sold to those who are under-age. It is a small number of merchants who choose to violate existing regulations, and they have no compunction about selling to those who are under-age. The intent of the legislation is to deal with that. It does not deal with the issue the member spoke about; there are many other issues that it does not deal with.

In second reading we heard the member for Richmond East propose that what was needed in this province was not this particular way of restricting sales to under-age persons but an entire expropriation of the right to sell tobacco products from the 30,000-some vendors that are currently licensed in the province, and placiement of that authority solely within the liquor distribution branch of the government of British Columbia. There are a number of ways of approaching this issue. The approach we have taken is the one that was proposed and recommended by the all-party standing committee of this Legislature.

That was to approach tobacco reduction through licensing of vendors and through the imposition of penalties on those vendors -- a small number of them, but a significant number -- who choose to continue to make profits from the sale of tobacco to those who are underage, and to remove that incentive from them and impose penalties if they choose to continue that process.

I find it a little strange that the member opposite proposes a wide range of additional measures. I believe that the member opposite was a member of that all-party standing committee, and the consensus brought forward by that committee is what this government is seeking to enact in legislation.

L. Fox: The minister is correct. I was a member of that all-party standing committee and in fact enjoyed my participation in that committee. One of the main concerns about any regulation around the sale of tobacco was building up an enforcement force or a separate body. Without going back and reading Hansard, my recollection was that we did not support a separate structure for the enforcement of it. We suggested that we use the existing officers within the Ministry of Health to enforce it. This carries us beyond those points, and we're now setting up a more structured administrative and enforcement structure than what was envisioned, in my view.

If I'm wrong, perhaps the minister would clarify that, but I really believe that if we're going to bring legislation forward, then it's going to have to be workable. Would the minister not agree that under this legislation it would be possible for an employee of a drugstore -- any tobacco store, whoever sells tobacco products -- to literally act as an intermediary in the process, because the business that held the licence would not be selling directly to an under-age individual? An employee could make the purchase and sell to an under-age person, and there's nothing in this act that would prevent that from happening.

That's the major concern, because essentially, I think what we're doing here.... One of my concerns that I've spoken on for over two years is that we should not be creating a situation where we're going to create a very large bootlegging-type problem and put cash in less-than-honourable individuals' pockets through our regulatory process. I'm very, very concerned that this bill, well intentioned as it is.... Perhaps it

[ Page 15056 ]

flows along with the recommendations of the select standing committee almost two years ago, but upon reflection and upon seeing it in print, I see a very major flaw, and therefore there's a very large concern, in my view.

Hon. P. Ramsey: We really are sort of debating principles rather than individual sections here, but I'll indulge it one more time if the member opposite will then pass a few sections until we get to sections that actually reflect some of his concerns.

Look, let's point out a couple of things here. If somebody repeatedly and explicitly sells tobacco and takes a profit off of it without obtaining a vendor's licence under the Tobacco Tax Act, he or she has committed an offence and can be prosecuted. There is a separate piece of legislation that this legislation refers to called the Tobacco Tax Act. That is the act that licences vendors of tobacco and tobacco products. It is an offence in this province to sell tobacco without having a licence to do so. If somebody chooses to do that, they will be in violation of that act.

Further, what I find a little strange about the debate we've had so far is that, on one hand, this member says we ought to ban resale and create yet another offence; we ought, perhaps, to look at banning possession of tobacco by those who are under-age. I would ask the member how on earth one would enforce such provisions without the creation of a vast bureaucracy and regulatory framework of precisely the form that he is now objecting to. On the one hand he says: "Let's create offence after offence after offence. Let's criminalize those who possess tobacco and are under the age of 19.

Let's make resale in a school yard an offence" -- even if it's one cigarette, I suppose -- "and send the tobacco cops in to bust that youngster's chops." On the other hand he says that what we need is less regulation and less bureaucracy. I get very diverse reads of what this member is actually proposing.

Finally, let me address the principles of the regulation scheme we have undertaken in this act. The all-party select standing committee that addressed this issue said to establish a licensing scheme for tobacco and, further, penalties for those who violate regulations in selling tobacco.

We have two options in implementing those recommendations. One is to create an entirely separate structure of licensing and enforcement and suspensions and the whole range. Second -- this is the option we chose -- we could piggyback this enforcement scheme on the existing licensing of tobacco vendors under the Tobacco Tax Act. We chose that option because it does not create a separate licensing scheme; it does not impose double registration and licensing on vendors; it has one administrative scheme for suspending licences rather than two; and it creates the efficiencies that the member opposite is talking about.

Further, enforcement of this is not going to be done by a vast new bureaucracy; it will be done by existing employees of the Ministry of Health, who will impose this regulation as they do many others in the field of health -- from restaurant inspection to swimming pool inspection. There are a variety of regulations that are enforced where violations are the subject of ticketing and conviction by employees of the Ministry of Health.

The regulatory scheme adopted here is the most streamlined we could find -- the least creative of additional cost and bureaucracy. Therefore I submit that we ought to pass through some of these sections that I think we all agree with and get into the nuts and bolts of how this regulatory scheme actually takes place. Where there are issues of substance, and how that is being done, we can profitably debate.

The Chair: The member continues. Member, we are dealing with

section 1, which deals with

definitions.

L. Fox: That's correct, hon. Chair. I think if you look at Hansard, you'll see that I pointed out that there's a need for a definition around reseller. That's the point I'm trying to make.

To reflect just a moment on the minister's response, I don't think you are getting a double-barrelled or two-directional meaning from me. In fact, your point is exactly what I'm trying to say -- that when we pass legislation, it should be more than a political statement. It should indeed have an opportunity to achieve the objectives that were meant when it was put forward.

By not having that definition, I firmly believe that this is going to go no further than the legislation we saw a year ago. By the minister's own admittance during the second reading stage, that legislation hasn't worked. I'm suggesting that this legislation.... A year from now we're going to point back, and we're going to have a paid administrator and an office that flows from this legislation, so there is going to be an administrative cost. Yet the objectives.... Because we do not have in this legislation, firstly, in the

definitions section, a definition of reseller, and secondly, some process later on for dealing with how that individual would be treated, that is a major flaw.

I won't belabour this point too much longer, but the minister suggests that this legislation, which looks after the illegal sale of tobacco.... Well, I want to tell you that I have never heard of an individual who has sold a carton of cigarettes to another individual being charged under some criminal code for an illegal activity. Maybe someone has been, but I've never seen it. If there's any case law out there that shows we have the court time to deal with those kinds of circumstances, on a one-package or one-carton situation, I'd be pleased to have the minister inform me of that. But I believe that's not the case.

I guess my number one objection is not that I want to see more bureaucracy, more legalities or whatever the case may be. I do want to see, if we can't do it.... If we know we can't somehow regulate smoking under the age of 19 to be stopped, then why do we spend our time debating a political statement rather than a piece of legislation that has a chance to work?

Hon. P. Ramsey: Once again, we seem to be in the realm of principles. The basic principle of this act is that the recommendations of the all-party standing committee make sense and that they should become part of the law of this province. This bill is the means by which they become part of the regulatory scheme for the sale of tobacco products and for creating offences and punishments for those violate those laws.

D. Mitchell: We will make progress on this section, I assure the minister, but I have to tell you that I'm disappointed that in this House this evening, the minister is the only member of the government present in this committee....

[ Page 15057 ]

M. Lord: Tut-tut!

D. Mitchell: Oh, two members -- one minister and one member -- are here for an important bill. Hon. Chair, you don't qualify, because you are impartial.

This is an important bill, and last night we had an interesting debate on second reading of this bill. The minister will remember it, and I think the minister did well in the debate.

M. Lord: We can't comment on people's presence or absence in the House.

D. Mitchell: That's true, and I'm not going to comment on the absence of all the government members who aren't here tonight.

The Chair: Member....

Hon. P. Ramsey: Point of order.

The Chair: The Minister of Health.

Hon. P. Ramsey: It's not sufficient to avoid the point of order by calling attention to his violation of a point of order, hon. Chair.

The Chair: Absolutely. Would the member please discipline himself.

D. Mitchell: I'll make my comments first, and then I'll leave and go discipline myself. Hon. Chair, I assure you that that discipline will not be in the form of going to have a smoke, because I'm not a smoker.

Last night during second reading debate on this bill, we heard a number of different points of view from members of the opposition, including members of the all-party standing committee that the minister keeps wanting to refer to and keeps suggesting that this bill was based upon.

I don't think the minister can hide behind a process, even if it is an all-party committee, if members of that committee -- and I was not one -- in the debate in second reading continue to disagree with each other and indeed with the minister on the bill that's being brought forward, and on whether it is representative of the all-party standing committee process. I have heard the member for Prince George-Omineca, who was a member of that committee, come forward with some very commonsensical criticisms of the bill. He was a member of the committee the minister keeps referring to.

Last night during second reading debate on the bill -- and I think this is relevant to the

definitions section, hon. Chair -- the Liberal critic, the member for Richmond East, suggested that she had different points of view than those expressed in the bill as well, and indeed she was a member of the committee and had input into the committee. In fact, the Liberal critic, the member for Richmond East, commented that she was in favour -- as the minister has correctly portrayed, I think -- of the notion that instead of this bill, which seeks to regulate the sale of tobacco products, we should have all tobacco products sold in government-controlled liquor stores.

I've got to wonder, when that member's leader talks about the privatization of all Crown corporations, which probably would include all liquor distribution branch outlets. That's a totally different concept than what the minister has put into this bill. When we have the Liberal critic, who was a member of the committee that the minister refers to, talking about selling tobacco only through government-monopoly liquor distribution outlets -- which her leader seeks to privatize -- now that would be a new regime altogether. And it would be interesting to have the Leader of the Opposition...

The Chair: Member....

D. Mitchell: ...come in to defend that policy.

The Chair: Member, order. Member, I'm really having problems understanding what your discussion has to do with the

definitions section. Could you please clarify that.

D. Mitchell: Hon. Chair, the member for Prince George-Omineca talked about the need for a definition of "reseller." The point that I'm getting to is, indeed, just that. I for one and, I would hazard a guess, you, hon. Chair, and other members of this assembly, upon going to a corner store to buy a carton of milk or whatever, have come across teenagers who asked us to purchase a package of cigarettes on their behalf. I have, and I've constantly refused to do that. Those are the resellers that I think would fall into the category that the member for Prince George-Omineca was referring to. They are not contained in the

definitions section. But I wonder if the minister could comment on whether or not he or his ministry staff have done any studies to take a look at this bill and whether or not it's simply going to contribute to a growing underground economy in tobacco products in the province.

[7:00]

Hon. P. Ramsey: Hon. Chair, I must confess that, like you, I'm having some difficulty relating some of these general comments to

section 1, "Definitions."

I do respect the interest of all members in controlling the use of tobacco products. Let me again state that there are probably as many approaches to this as there are advocacy groups. I and other members have received any number of suggestions from non-smokers' rights organizations and others for ways in which legislation could be imposed, up to and including, I guess, prohibition of sales of all tobacco products and making it absolutely illegal to purchase or use this product in the country. We have a huge range....

Interjection.

Hon. P. Ramsey: The member for Prince George-Omineca says that it won't work. I submit that one of the major objections to the idea of a ban on resale, particularly by an individual, is that you usually don't try to enact stuff that is patently unenforceable and would bring the law into disrepute.

The provisions of this act are enforceable against those who have sought and obtained the right to be vendors of tobacco under the Tobacco Tax Act. There are a defined set of corporations and individuals acting in this way under a privilege granted to them by the laws by the province. It is a privilege that can be curtailed if it is abused by the contravention of regulations pursuant to this act. That, I believe, is a scheme that is enforceable, that reflects the need to have laws

[ Page 15058 ]

that are respected, that reflects the right of those legal vendors to sell tobacco under the licence they are given and that recognizes that the great majority of vendors do not wish to violate the act. At the same time, it says very clearly to those who want to sell to under-age people and who want to violate other regulations that there are financial penalties and perhaps personal penalties for doing so.

Section 1 approved.

section 2.

D. Mitchell: I have a question on

section 2. I find it interesting in terms of its drafting. I wonder about the enforceability of this. I'm concerned about the word "promote" in

section 2. It says: "A person must not sell, offer for sale, distribute, advertise or promote the use of tobacco to a person who has not attained the age specified by regulation...." "Advertise" and "promote" are two interesting words in here. I wonder: does the minister believe that the passage of Bill 21 will grant to the provincial government the ability to prevent advertising or promotion, through all forms of media, in the province?

I raise this as a crucial question which I also referred to during my second reading comments last evening. One of the most insidious forms of promoting the use of tobacco products, particularly amongst young people and particularly amongst young girls, who are targeted by tobacco advertisers and promoters of tobacco products, is through the media. It's through magazines, newspapers, television, the movies, and what have you. How can Bill 21 actually be enforced? How can the minister do this?

I know that previous governments, going back a quarter of a century or more, have tried to do this and have had great difficulty. So I'm interested in any legal opinions that the minister has obtained that will prove the enforceability of this clause. I would like to think it was so.

Hon. P. Ramsey: I think I should refer the member opposite to some of the existing provisions of the Tobacco Sales Act, particularly

section 4, which has to do with the ability of the Crown to make regulations. It says: "The Lieutenant-Governor-in-Council may make regulations and orders including those (

a) respecting the labelling, packaging, selling, distributing, offering, exposing, promoting and advertising of tobacco in the province...." The act contains the ability to do this.

As the member opposite also knows -- I think he listened to second reading last night -- one of the successes of this country in controlling the use of tobacco products has been its leadership in curtailing advertising of those products. It has been a singular success of this country, and at the recent Child Health 2000 conference, anti-tobacco activists praised this country for its leadership in doing so. In many instances, in the case of advertising and promoting, federal regulations do the work that provincial regulations might also perform. We've seen no need to create duplicate regulations in some cases.

Let's be clear about what is or is not allowed. You can't post an advertisement in a store for tobacco products -- you just can't. The packets are there, and currently the federal government is considering whether plain packaging ought to be part of the rules. If so, it clearly should be a federal initiative and should stretch across boundaries. So I submit that the

section to which the member refers is enforceable. It clearly intersects with other provisions of the act. I could refer to the long list of other matters that the Lieutenant-Governor-in-Council can make regulations about. Therefore it refers to powers within the realm of the province, and it provides for the enforcing of those regulations.

D. Mitchell: Just one follow-up question then. The minister is indicating to me -- and this is my

interpretation of what he said -- that this

section is largely of symbolic value and that it may mesh with federal regulations. Maybe some symbolic value is important. But what about enforcing it when an American magazine is distributed and sold in British Columbia with an ad for Virginia Slims saying, "You've come a long way, baby," or something to that effect? Or if we have American television programs or other forms of media that are consumed in the province, how can the minister say that this

section is enforceable and that a person must not advertise or promote the use of tobacco to a person who is a minor? How can this be of more than symbolic value? How can we stop the flood or the deluge of information that is geared and targeted particularly to young people, especially in the age of the Internet? How can we do it?

Hon. P. Ramsey: Obviously, as a province and as a country, we have the ability and responsibility to legislate and regulate within our borders. If the member has a suggestion on how we regulate tobacco advertising in the United States, I'd be pleased to hear his suggestion.

J. Tyabji: As a follow-up to the questions of the member for West Vancouver-Garibaldi, I hope the minister will understand the nature of this question. Given that this province is obviously constrained to regulate and legislate within its own boundaries, to what extent has the minister had discussions with people who publish within British Columbia or with national publications which have different kinds of issues for the provinces? To what extent have there been discussions about the revenue that would be generated?

The reason I talk about this is that I know that there's an ongoing debate -- and this is a different angle of the debate -- by small businesses and domestic businesses. They end up at a serious disadvantage, because they don't have access to the same sources of revenue as their competitors from other jurisdictions, and then they end up behind.

I should say that I'm obviously in favor of legislating against the advertising. But, for example, the minister put on the floor that if anyone has any ideas about how to get the American states, or some of these other jurisdictions, to pass similar legislation, to bring that forward. I would assume that anyone who has a vested interest in being on an even playing field with those other publications would also have a vested interest in lobbying to make sure that the laws are similar.

To what extent has there been any dialogue with those people who will be affected by this, to maybe be sure that everyone has the same common interest of preventing advertising of smoking but that we also have a common interest of not putting our own businesses at a competitive disadvantage to those in other jurisdictions? I don't know if there have been any discussions, but I know that we're going to get letters from domestic publishers when this debate is concluded, saying exactly what I just said. It happens in the wine industry and the beer industry all the time, where they feel like they're at a disadvantage compared to other jurisdictions.

[ Page 15059 ]

Hon. P. Ramsey: I and my fellow provincial Health ministers regularly discuss among ourselves with the federal government a means of controlling tobacco use and a means of seeking to lower tobacco use among residents of our provinces. I must say, though, that this is a fascinating conversation, but I am having some difficulty relating it to the objective of

section 2.

V. Anderson: In

section 2 there are.... I ask the minister why he has left the age to regulations, rather than writing in the bill that persons 18 and under would be covered by the bill and you'd not be able to sell to people 18 and under. Why is this left open? Is there an idea? If you turn to the regulation in

section 4(d.3) of the Tobacco Sales Act to follow up on this, as I read it, it's "specifying the age for the purposes of

section 2(2)." So there's nowhere in this amendment that it's specifically.... It's left open as to age. Is there a reason for that, or was that an oversight? It was my understanding that it was age 18 and under that this should apply to. It should have been in the bill rather than a regulation, unless there is some reason that they're going to change the age. Or what in that...? My understanding is that it would be in the bill.

Hon. P. Ramsey: The age of legal purchase has always been in regulation, and this bill simply maintains that arrangement. I should also inform the member that the age of legal purchase of tobacco products is 19, not 18.

V. Anderson: I said 18 and under; I realize that it's 19. That's simply by regulation and not in the bill, so I'm asking why.

Also, it's been suggested that this change has also taken out the requirement, or the ability, to ask for ID. Is that still very much a part of this?

Hon. P. Ramsey: I think a comparison of the proposed new

section 2(2) of the Tobacco Sales Act will reflect the intent to actually strengthen the onus on the retailer to ensure that the person he or she is selling to has attained the age of 19. The current

section 2(2) says that vendors have to take measures to ensure that "purchasers have attained this specified age, including requiring purchasers to produce valid photo identification that establishes age if it is reasonable to question whether the specified age has been attained." The restated

section 2(2) places the onus squarely on the vendor to ensure that the person has attained legal age for purchasing tobacco products. It eliminates the ambiguity about whether it is reasonable or not to question and places the onus squarely on the vendor.

[7:15]

D. Mitchell: Just before we leave

section 2, I want to go back to the concepts of "promoting" and "advertising" and how the minister would define those terms. The minister has now told the committee that British Columbia cannot control the American advertising industry. Too bad -- I wish we could. It might be a good thing if we could, but we clearly can't stem the tide.

Hon. P. Ramsey: I share the member opposite's concern about some of the tactics that have been adopted by the international tobacco industry. As the member probably knows, this is a matter under active consideration at the federal level by the federal Minister of Health to see what additional restrictions can be put on the use of advertising and logos by tobacco manufacturers. As the member knows, the way in which tobacco manufacturers have skirted existing provisions is by saying that they are not advertising specific brands but are simply doing identification of and corporate sponsorship of events.

I probably share the view of the member opposite that this defence is a touch flimsy. It makes little difference when one sees the colours and goes to buy the packet of tobacco that has those colours on it. It is a difficult one. Again, whether it's a car racing in the Indianapolis 500 that has a tobacco logo on it or a banner strung around the bottom of a ski slope, it does have that subliminal affect.

In this country the most appropriate initial way of approaching that is on the national scene, which is why we have allowed the federal government to enact its regulations on advertising. We have not sought to infringe too much on that. I can see circumstances where we would; we have the authority and ability to enact regulations. The focus of this act and its provisions is on under-age purchasers. I would suggest that if a vendor decided that they wanted to do a Symphony of Fire for those under age 19, it might well be something that could prompt a regulation on the provincial level.

D. Mitchell: I think I am beginning to understand this

section a little bit more as the minister defines it. We can't deal with the thorny issue of corporate sponsorship; it's probably beyond our purview to deal with that in this bill or indeed in this Legislature. We here in British Columbia can't control American advertisers and tobacco manufacturers from outside our boundaries. What this

section does is say that those who do advertise or promote the use of tobacco to minors in our province....

Interjection.

D. Mitchell: Well, what I really want to ask is: what can we do? It says that people shall not do this, but what are the penalties that the minister might be considering under regulation? I know that this is probably anticipating future policy, but I want to know. I think it's important to the principle of this

section to understand what kind of penalties are being considered for a person who violates

section 2.

Hon. P. Ramsey: Violation of

section 2 is an offence. I refer the member to the penalties for an offence under

section 5 of the act.

J. Tyabji: I just want to go back to the question I'd asked about earlier. Let's use the example of magazines and advertising. Maybe if I give the minister a very specific example.... If we had a Vancouver-based tobacco company, whether it's

[ Page 15060 ]

Imperial Tobacco Ltd. or some other tobacco company, and they know they cannot advertise in a B.C.-based magazine -- because obviously that falls within the regulations and legislation of the province and the federal government -- but they have a chunk of advertising.... So they go south of the border to a magazine similar to Cascadia, where there is widespread distribution and readership in the province but the magazine is actually published south of the border. To what extent would the government have the ability to deal with that as a problem under this section?

Further, because the revenue originated in British Columbia, would the government have any jurisdiction over that as being a violation of the intent of this section?

Hon. P. Ramsey: This act focuses on controlling the activity of vendors, not manufacturers. I don't think the provisions of this particular act would have much influence on the sort of international trade the member contemplates.

L. Fox: I have just one quick question. Perhaps the reason I'm a bit confused is the wording in this section. It says that a person "must not sell," yet the minister openly suggests and has repeatedly told us that the only action they have is to revoke the licence of the vendor. I guess I'm a bit confused, because it suggests a person, not an entity or a business. It suggests that the action is against the person, when it isn't; it's against the vendor or the licensee, as I understand it. Would the minister like to clarify that for me?

Hon. P. Ramsey: Under the

Interpretation Act, "person" does capture both corporations and individuals. We are looking here at penalties against persons or corporations who have obtained a vendor's licence to sell tobacco under the Tobacco Tax Act, and at the revocation of those privileges for a longer period of time if they violate regulations under this act.

L. Fox: The reason I want to clarify that is just to find out whether there is an action that could be taken against the individual who is manning the till at that point in time. This

section is not very clear, and if you go to later sections to try to get that clarification, it's still not clear -- at least in my view. Perhaps the minister could put on the record that the individual in this case -- the employee, or perhaps even the owner-operator -- would not be personally responsible, and that only the vendor or the licence holder would be responsible.

Hon. P. Ramsey: I'm taking my best shot at trying to untangle this. I think I would ask that we set this

section aside until later, and I'll see if I can try, yet again, to untangle this web for the hon. member. I do want to try to clarify the questions he has raised. If that's acceptable to the committee, we could come back to this later in the sitting.

The Chair:

Section 2 is set aside.

section 3,

section 3.1.

V. Anderson: In

section 3, 3.1 is about the enforcement officers. Could the minister give us some indication of how many enforcement officers he is talking about? And what is he estimating the cost will be of these officers and the process in which they are engaged? What are we undertaking here when we're looking at officers? Who will the officers be? How do the officers get appointed? How many are we looking at, and what will be the overall cost?

Hon. P. Ramsey: There are about 250 environmental health officers employed in this province in health units that enforce a variety of health regulations. Enforcement of these regulations will be added to their duties. We do not contemplate adding staff to enforce these regulations.

V. Anderson: So this is going to be added to their duties. Presumably they're already fully employed, so what are you going to take away from their duties when you add this to their duties? If they're already fully employed, what's there...? And what particular additional training are you going to be giving the people for this particular function?

Hon. P. Ramsey: These employees are well trained in the enforcement of provincial regulations. I point out to the hon. member that many of their responsibilities already take them into locations that are licensed to sell tobacco -- food stores, restaurants, bars and a variety of places that they already have the responsibility for overseeing regulations about. We contemplate no additional training costs.

To date, the officers have been doing a variety of compliance inspections of outlets of tobacco vendors around the province. They've completed several thousand already and will continue to do so to the end of March, in the first year of the previous amendments -- which were, in part, education with the tobacco vendors. Close to 3,000 inspections of tobacco vendors around the province were done. We expect that this work by health officials will be ongoing. They have the authority to enforce the Tobacco Sales Act and to gather evidence that will be required in court. They will carry this out as part of their normal duties.

V. Anderson: One of the things it talks about is that they can gather evidence. The main requirement here is that a vendor not sell a cigarette to a person who is under-age. Can you suggest what kind of evidence they're going to collect that can demonstrate...? I understand that part of the present difficulty is that unless that young person is willing to testify that they're under-age and bought that cigarette, they haven't been able to follow up on the complaint.

What kind of evidence different from that is this officer going to be able to collect, other than taking pictures, and a sound video if you like, of the actual sale? What is the kind of evidence this officer is looking for, under this particular act, that they can take with them to court which will be different from what they have at the present time?

Hon. P. Ramsey: Clearly, a conviction in court requires a certain level of formality in gathering evidence. Affidavits will do quite nicely, either by those who purchased product and were under-age or by somebody who witnessed a violation of the regulations under this act.

L. Fox: I have just a few questions. I don't want to question the minister in terms of what he states -- that the existing manpower or employment base of individuals will be sufficient to carry out the requirements of this legislation. But I think the minister will know, and certainly agree, that presently the officers are extremely taxed at certain times of the year in some parts of the province because of the issues around the other approvals they have to go through. Oftentimes they're trying to comply and satisfy a construction industry, particularly, or individuals who are looking for swift approval of sewers and so on, because we have a limited

[ Page 15061 ]

construction period in those regions of the province. I think it's fair to say that at some times during the year, the existing manpower is going to have difficulty meeting any more requirements in terms of time. I'm quite sure that we will see requests for manpower somewhere down the road because of the added responsibility. I think that's inevitable, and I think the member for...

[7:30]

Interjection.

L. Fox: ...Vancouver-Langara.... I apologize for that, hon. member; after four years I should almost start to remember that.

He makes a good point that there will indeed be added costs somewhere down the road. But I guess my concern here is whether we're going to be reactive in this enforcement or proactive. Are we going to go out looking for individuals who are not complying with the legislation, or are we going to react to complaints and concerns that are brought forward by some segments of the public?

Hon. P. Ramsey: I would suggest that speculation on the size of staff in the future is just that: speculation. I would also suggest, as I said earlier, that the great majority of those licensed to sell tobacco in the province wish to abide by the regulations and want help in saying no to under-age purchasers. There will be a small minority of offenders who are the hot spots that must be dealt with.

The member asked whether it would be proactive or reactive. It will be proactive -- almost acting as educators -- in inspecting premises and making sure that appropriate signage is in place and that vendors know what the regulations are and what their responsibilities are under the act. It will be reactive in responding to complaints about specific violations of the act, be it selling to under-age purchasers, selling kiddie packs or selling individual cigarettes.

L. Fox: Just one final question: could the minister perhaps tell me how many employees we presently have -- designated individuals -- who would fall under this particular clause, and how many tobacco outlets there are in British Columbia today, so I can get some idea of the workload for those individuals over the course of the next short while?

Hon. P. Ramsey: As I said, there are about 250 environmental health officers in health units around the province and in municipal health departments. They also have the ability to designate additional personnel as enforcement officers, who can carry out these roles as part of their duties. In the Capital Health Board region here in Victoria, I understand they have designated a couple of people who have a broad responsibility in health education to do some of that work with vendors as far as educating them about signage and the law, and appropriate procedures, are concerned.

Our estimate was that there are about 30,000 licensed vendors in the province. As we actually start looking around, we find that the number may be fewer, and a substantial number of those may have lapsed and are no longer actively selling tobacco.

V. Anderson: I pick up on the enforcement, and the minister mentioned education. What kind of educational program will be undertaken as part of this extension (1) to the vendors, so that they're very aware of it; (2) basically to the community, so they're aware that they can help to monitor and be in touch with the vendors; and (3) to the young people, so that they're very aware and become more aware? Because, though I didn't speak to the issue last night, the education behind this is more important than the enforcement in the long run.

We're talking about enforcement here, so I'm asking about what kind of educational process -- for the young people, the community and the vendors -- will be backing this up and will be the supportive environment in which these officers will be working.

Hon. P. Ramsey: To date we have been working directly with tobacco retailers and vendors. Some 60,000 health warning signs and 20,000 information packets have been distributed, both by direct mail and through health and health unit departments. To date, one-half of the tobacco retailers have been directly contacted about the tobacco regulations, appropriate signage and their obligations under this act. A media campaign was also used to inform retailers when the Tobacco Sales Act came into force, and we expect to undertake similar measures as we move to these next stages.

I think the member is asking a variety of other questions about how you educate the broad public about the dangers of tobacco use. Quite frankly, that is a matter more for estimates debate and general debate on health than for the provisions of this legislation.

V. Anderson: I do agree with the minister in one sense, and I thank him for his reply about the broad question of health. But also the broad question of young people being aware of this and of the additional.... I mean, what was put out a year ago and what comes out now, particularly since the minister has acknowledged himself, as others have, that the process to date hasn't been very effective.... So the education to date hasn't been that effective either for the vendors or for the young people, who are still going to buy cigarettes. So it seems to me that if we are re-emphasizing the need....

There is a need for a positive input in this legislation to reach the young people through the schools or community centres or wherever they meet, to make them aware that they're not playing fair with the vendors when they go and ask for these cigarettes. They have a responsibility, and I think it's the responsibility as well as the fear that need to be a part of the process of supporting the officers who go out into the field.

Hon. P. Ramsey: I don't disagree; I'm not sure it has much to do with the specific legislative provisions that we're debating. I'd correct the member on two things. First, compliance and measures to ascertain the amount of compliance with existing regulations have varied. I'd quote a couple of studies. One was done independently by the University College of the Cariboo. A class there undertook to measure compliance in Kamloops.

They used an under-age person and sent them in to buy cigarettes to see how many vendors sold and how many didn't: 81 percent complied with the legislation and seemed aware of it; 19 percent did not. There were similar figures from a survey of the New Westminster health department: some 76 percent were in full compliance; some were not.

[ Page 15062 ]

As far as making young people aware of these regulations is concerned, clearly education packages through "Learning for Living" and other curriculums of the schools talk about the dangers of tobacco use and regulations for its acquisition. I would suggest, from my conversations with young people, that they're well aware of what the rules are around the purchase of tobacco products. I would also suggest to the member that the fact that every retailer must post a sign that says that 19 is the legal age for purchase makes it fairly obvious what the rules are.

L. Fox: I don't disagree with the minister's last statement; I think the youth are well aware of what the age is. What bothers me, however, is that I see an increase in the number of them that are still accessing cigarettes and still smoking, even though we've had that published age and that sticker on the tills for the last year. I guess I'm not hopeful, no matter how knowledgable they are about the regulations and this legislation, that we're going to see a reduction in that.

I want to ask a question around

section 3.1(4). It says: "A person must not...hinder, obstruct or otherwise interfere with an enforcement officer who is acting under this Act or the regulations...." I guess the only concern I have with respect to that might be around timing. For instance, if an enforcement officer decides to come in, let's say, at a really busy time in a respective establishment, and you have a limited number of employees there, and you're not only watching your customers but you're watching individuals who I guess need to be watched on these premises, and so on.... I guess I'm concerned that....

We all know that occasionally we can have individuals who are brand-new on the job and just really want to show that they have some authority. In the minister's consideration, would it be reasonable for that vendor to ask that individual to come back at a more appropriate time? Or would that indeed be classified as hindering or an obstruction to this individual doing his job?

I think we have to recognize that there are times -- especially in small businesses -- where employees may not have the opportunity to just stop what they're doing and all of a sudden listen to a lecture on how a particular posting or signage should be placed. I'm concerned that with this legislation, in the way that it's written, that could be seen as an obstruction of or interference with an individual doing his or her duties.

Hon. P. Ramsey: The environmental health officers who are charged with doing swimming pool inspections, restaurant inspections and a variety of other inspections are well aware of the stresses and strains of small business operations. I have received relatively few complaints about their performance of their duties in enforcement of those regulations. I suppose, at the extreme, if somebody said "come back tomorrow" ten days in a row, one could constitute it as hindering, but I've yet to see.... I think there's some sort of the normal courtesy in enforcing regulations that Ministry of Health personnel and others do indeed exhibit.

L. Fox: The minister would then agree that it would be reasonable that a businessman or a vendor should not only be reasonable in his or her approach but also that the request for the officer to come back at another time that's more appropriate would be a reasonable request to make, if in fact the particular business was extremely busy at the time. I'm not looking for excuses through you, hon. Chair, to the minister.

I'm not looking for individual businesses to have a way out here, but I am looking for some reasonable dialogue to take place between the two around what might be more convenient for both the officer and the business, in terms of the business people having the time available to pay close attention to what the enforcement officers are attempting to instruct as well as having the opportunity to consume it all.

[7:45]

Hon. P. Ramsey: I recognize the importance of those who enforce government regulations dealing courteously with their customers, the taxpaying public, and I think that environmental health officers do that well. But let's look at the actual regulations these officers would be inspecting for. Most of what they are seeking to ascertain can be done by visual inspection, with little or no interaction with owners or employees. Are the signs in place? Is there the appropriate signage for sellers of product and for those who are purchasing? Are there open packs of cigarettes available in a public place?

Are kiddie packs on display? Are vending machines available in an area that is accessible to those under the age of 19? All those are done by visual inspection.

Virtually the only regulation that they are enforcing that requires extensive interaction is in the case of complaints, where they are looking at sales to somebody under the age of 19 or at actual enforcement of a complaint, where they find open packets of cigarettes, kiddie packs or other violations of the regulations. In those cases, I think it is appropriate to act and indeed to impose upon the vendor a touch.

Section 3,

section 3.1 approved.

section 3,

section 3.2.

L. Fox: I have just one very brief question. Essentially, this

section is pretty self-explanatory. I guess that if you accept the other issues within the bill, by and large you accept the process for dealing with the return of seized items. The only question I have in this area revolves around the issue of vending machines, if it was perceived by an enforcement officer that a vending machine was not being supervised correctly by the establishment that had the vending machine in it. Those vending machines are often owned by another party within the premises, and they are there on a commission basis with the establishment.

I recognize that under the previous legislation vending machines are supposed to be accessible only in licensed premises, but I have seen -- and perhaps this is something that would be resolved under this legislation -- machines in the doorways of those existing licensed premises. They are not inside the door of the licensed premise, so it would often be quite easy for an under-age individual not to be immediately observed and to take cigarettes out of them.

I guess why I'm asking the question is that the individual owning this vending machine isn't the owner of the premises that it's in. If it is seized, then it's through no action of his own. What kind of process would we have in order for the third party to get the equipment back? I read through this act trying to put that into some kind of perspective, and I had difficulty doing it. The minister might want to explain.

Hon. P. Ramsey: It's a fascinating hypothetical case. I must say, without meaning to be glib, that it ain't our problem.

[ Page 15063 ]

And the reason why it isn't is as follows. I spoke earlier about how we sought to harmonize enforcement of provincial law with federal law. We have left to the federal legislation enforcement of the prohibition against vending machines being available in areas accessible to those under the legal age for purchase. It is not something that our environmental health officers will be "seizing" or dealing with. If they saw a vending machine in an incorrect place, they would inform Health Canada that this has occurred. My understanding is that Health Canada would then seek not to seize but simply to lay a charge, and Health Canada would be the enforcers of those regulations.

Perhaps part of the difficulty the member saw here was that as part of our harmonization effort we left that particular issue to Health Canada. As I understand it, they are not interested in actually seizing the machine; they are interested in laying a charge and prosecuting those who violate that regulation.

Section 3,

section 3.2 approved.

section 3,

section 3.3.

V. Anderson: The minister will be designating an administrator to undertake the process. I'm presuming this is a new appointment. Could the minister indicate the terms of reference for full-time appointment and what kind of staff this person will have as part of this process? It's fairly new, and a lot is going to be involved in it. He has indicated that the field officers are already in place, but there will be all the contact, the office work and all the rest that goes with it. Could he indicate what kind of office and administrative staff he's intending to have for this position?

Hon. P. Ramsey: We'll be asking an existing employee to assume these responsibilities. I have just been asking staff what thought the ministry executive has given to which position should have these duties. There is currently a position of director of radiation protection, which is another set of regulations that we have under the act, and that individual will have these duties of administrator under the Tobacco Sales Act added to his duties.

L. Fox: I see an interesting management difficulty here, and one has to question how everthing is going to flow in terms of.... You have an administrator who sets goals and objectives under the legislation -- some kind of criteria -- in terms of how he or she may want to have some 30,000 vendors inspected. In another area you have your health boards, which also have some priorities and issues they want dealt with.

I have this fear that somehow there's going to be a bit of a tug of war between the two administrative branches of this initiative around what kind of distribution there's going to be in the employee's workday. How much effort in the employee's week is going to be spent trying to enforce the intent of this legislation versus how much is going to be spent on the job that they are presently in? How is this all going to flow together with this administrator and the existing administration of those employees? How is that going to intertwine? How are they going to manage their respective goals and objectives?

What process is going to be there in order to dialogue and come to grips with these kinds of issues?

Hon. P. Ramsey: Actually, the division of labour is not greatly different from what we have now in many areas of Ministry of Health operations and the inspection and enforcement of regulations. We do indeed have essential people at the ministry who have broad administrative responsibilities.

But the actual carrying out of day-to-day inspections is done by employees of municipal health departments and by ministry employees who work in health units around the province. The local inspectors or local enforcement officers will be employees of regional health boards. They'll be contracted. Part of the contract between regional health boards and the ministry will be for enforcement of provincial regulations. They will carry out their duties. If convictions are obtained in court, those convictions are sent directly to the administrator, and he or she takes appropriate action from there.

L. Fox: Okay. Well, I understand, then, the.... Maybe I interpreted more into the administrator's role than I had envisioned. I thought the administrator would be an overall administrator of this whole initiative, as well as just an individual who accepted the findings of an investigation and decided what action would be appropriate. It was my understanding, in

interpretation of this legislation, that the administrator would also administer the overall initiatives taken under this legislation, not just be the individual who would indeed decide what prosecution or action should be taken against the licensee. If I'm wrong in that, perhaps the minister should explain that to me.

Hon. P. Ramsey: The enforcement of the regulations under the Tobacco Sales Act is not greatly different from other regulations that the Ministry of Health enforces. The enforcement officers write a ticket for a violation of one of the regulations; it is for a sum. If the vendor pays the fine, he or she is guilty. If they decline to pay the fine and refuse, they are guilty. If they seek to contest it in court, then the environmental health officer or enforcement officer will prepare the case and present it in court.

That is done as part of enforcement of policy and regulations. It's not done under the direction of the administrator; it's done at a local level. It's done for a variety of regulations now. It will be done for the Tobacco Sales Act as well.

L. Fox: I want to get this straight, because I think the minister just told me something totally the opposite of what he told me a few moments ago, in that the administrator would receive the charges -- at least that's what I understood him to say -- and then not administer the regulations. Now the minister is suggesting that the administrator is going to administer the regulations and that the appropriate court action will be taken by the health officer and the regional board or whatever the case may be. In any case, the administrator is in fact going to administer the regulations -- the overall regulations.

Then, there is going to be perhaps some dialogue or a contract with the respective regional health board around how much time would be allotted to this specific service of that employee, who's under the employ of the regional health board. I guess I'm trying to understand here how the priorities are going to be set around that employee's time. If an employee has pressure on his or her time.... Getting back to the seasonal concerns that I run into in my constituency, individuals are sometimes waiting for weeks for sewerage approval. They're waiting to get on with it and build their

[ Page 15064 ]

home, because they only have a certain amount of time to do it. Is there enough flexibility, will there be enough dialogue and will there be enough understanding between this administrator and the regional health board around those kinds of issues? How would they resolve it? If the administrator says that in this particular region, not enough time is spent on the issue of the sale of tobacco to minors, and more time is needed because of the number of complaints or whatever the case may be, how do those kinds of management questions get resolved? That's the concern I have, and I'm still not sure that the minister has resolved it -- at least, not in my mind.

I understand how the existing process works and how the priorities will be set by the regional health board in terms of the utilization of its staff. If you have an administrator outside of the system utilizing the same workforce in different regions of the province -- 20 regions, as I understand it -- then how will these kinds of priorities be set?

[8:00]

Hon. P. Ramsey: Let me try again. The administrator, under

section 3.3, has broad programmatic and policy responsibilities, not unlike somebody who's responsible for doing work around sewage disposal regulations. The issuance of permits is done for sewage disposal facilities at the local level; it is not directed by the central administrator. The administrator here has responsibility for the broad policy objectives of enforcing the Tobacco Sales Act. He or she also has, by law, a copy of every conviction that has been obtained against a vendor of these products for any contravention of these regulations.

He has the responsibility for ensuring that appropriate suspensions or fines or other penalties are enforced; he or she does not direct the day-to-day operations of the enforcement officers who are charged with inspecting premises and enforcing the provisions of this act.

I must say that in most areas of the province, tobacco use, particularly among the young, is seen as a high priority by those who work in public health units and in the field of environmental health. It's surely seen as a high priority by many who are concerned about improving the health of British Columbians. I would expect that this would have a fairly high priority in most areas of the province. The priority given may well vary, depending on the experience that the regional board or community council has with the enforcement of these regulations, but I would submit that concern about the use of tobacco products by youth is widespread in British Columbia.

V. Anderson: Like my colleague, I'm having a little difficulty understanding the breadth of it. On one hand, I hear that the administrator is really just dealing with the regulations; on the other hand, he will receive from the judge any convictions; and on the other hand, he will review the certificates regarding the businesses -- and I presume will also have to be working with the Finance ministry regarding the licences.

So these are the areas that are all the responsibility of the administrator: being in touch with the field staff to make sure they're all operating under the same set of regulations or rules, or being in touch with the regional health boards to make sure they're all operating with the same sets of regulations and rules; working with the judges on the convictions; and working with the licence and the registration, and back to the businesses, to make sure that the regulations are followed through.

Just as an illustration, who will be responsible for verifying that a business that has had its licence to sell cigarettes removed...? Does that mean that they also take their cigarettes off the shelf for that period of time? Do they put them away altogether for the period of time they're under suspension? That supervision has to be followed up, and I expect it's the administrator's responsibility to make sure that that supervision is also followed up as well.

Hon. P. Ramsey: I would submit again that we're straying far from the

section under immediate debate, and we might want to move on through here till we get to sections that might directly address the issue raised by the member.

If a vendor's licence to sell tobacco is lifted, those who are responsible for the Tobacco Tax Act ensure.... Well, it is an offence to have tobacco on the premises, and that can be verified by a variety of people enforcing the provisions of the Tobacco Tax Act. It is indeed their responsibility to make sure that the products aren't sold.

I would suggest to the chamber that we move through a couple of these sections and deal with specifics that they encompass, and that we will get to some of the issues that this member is addressing.

Section 3,

section 3.3 approved.

section 3,

section 3.4.

V. Anderson: Just briefly, if an inspector goes in and has reason to lay a claim, do all of these claims go to a judge in a court for a conviction each time? Is that what I'm understanding by this? Each time a person is deemed to be guilty of an offence, that offence must go to court. Which court -- and what indication do we have from the court loads as to how long it would take to go through the courts? The court process for most people is months and years. Have you any indication what the actual waiting time involved would be?

I presume that the vendor is free to go on selling until that court has actually made a decision, and only after the decision would there be any action taken against them. But until the judge has made a decision, they'll continue to be able to sell.

Hon. P. Ramsey: This act is like other acts; you're not convicted until you're convicted.

[H. Giesbrecht in the chair.]

Section 3,

section 3.4 approved.

section 3,

section 3.5.

L. Fox: I wanted to get a bit of clarification in this

section around the accumulated convictions.

Section 3.5(2) shows that if there's a series of two, three or four or more convictions, there's a substantial suspension. Subsection (5) says: "For the purposes of calculating a suspension described in subsection (2), the dates on which the convictions occurred shall be considered and no consideration shall be given to the date the offences occurred." I'm trying to get clear in my mind what the statute of limitations is in terms of ongoing convictions. If you have one conviction, for instance, every two years, does that constitute the buildup we see under

section 3.5(2)? Does it become an aggregate number? Or is there a certain time frame? Is it two convictions successively within a certain time frame, or after...?

[ Page 15065 ]

I think back to the points I got when I drove. On my birthday every year, those points dropped off and didn't become.... I guess I'm trying to get around this issue in my mind. Maybe the minister can clarify that for me.

Hon. P. Ramsey: I think your analogy is a good one. It's a 60-month period; it's a rolling five-year period. As each month goes on, a month at the start of that five-year period drops off. You're quite right: once those sins of the past are further than five years in the past, they no longer count.

L. Fox: I would suspect, then, that if I have two convictions over a period of five years, I'm looking at facing a three-month suspension. I have some problems with whether or not that's reasonable. I would suggest that if I've only erred twice over a five-year period of time, that's probably not a bad record in terms of lots of establishments where you have, particularly, a problem.... I'm thinking more now of the 7-Elevens and those kinds of confectionaries where you have a revolving staff.

It's very, very difficult to keep consistent staff in those, because everybody's looking to advance themselves from that particular type of job. I really have some concerns that, in fact, that's going to become rather onerous. However, I guess I'll leave it at that.

Hon. P. Ramsey: We could debate whether it's onerous or not. The enforcement officers do have discretion. I don't think they're prepared to issue a

summary conviction simply because a sign wasn't in place on one day. But I think these provisions are needed to make sure that these provisions are taken seriously and that there are real penalties for violation of them.

V. Anderson: Just one clarification, in passing. When a case is taken to court, is it assumed that if the person is found guilty, they're paying the court costs, and if they're not found guilty, they're not responsible for the court costs -- the government accepts the cost of the court in that case?

Hon. P. Ramsey: The provisions of this act are enforced like any criminal matter: the costs of prosecution are borne by the state, and the costs of defence are borne by the defendant.

Section 3, sections 3.5 and 3.6 approved.

section 3,

section 3.7.

V. Anderson: In each of these cases, is it understood that reasons for this will be supplied with the certificate -- that when a certificate is given or withheld, there will be written reasons that will be available for that? Is that one of the implications here: you won't just get the notice but you'll also get the reasons for it?

Hon. P. Ramsey: The reasons are in the convictions.

V. Anderson: Would the minister explain a little bit about

section 3.7(5)? It says:

"Subject to this section, a review under this

section is governed by rules, practices and procedures adopted by the administrator" -- as we follow through here, the administrator seems to have both the first and the final say -- "and, in the conduct of such a review, the administrator is not bound by the legal or technical rules of evidence and may act on evidence by affidavit...."

There's a lot of power in this particular

section -- subsection (5) -- and I think there should be some explanation of what the essence of this

section is. Because it takes a little while reading it to try and find out what happens.

[8:15]

Hon. P. Ramsey: Subsection (5) allows an administrator to adopt any appropriate practices and procedures in conducting the review to make sure that the grounds for issuing a certificate are in fact in place. He or she may rely on evidence by affidavit or a written statement or report of an officer. Some of the rules of the Evidence Act that you'd expect in a court need not be adhered to. I think this is common for administrative matters. Clearly, all the expectations of administrative fairness apply to reviews conducted under this section.

Section 3,

section 3.7 approved.

section 3,

section 3.8.

L. Fox: Actually, sections 3.7 and 3.8.... I guess one wouldn't have problems with the authority given to the administrator under

section 3.7 if we had, I think, a more realistic appeal process under

section 3.8. I'm concerned here that, given that you could look at, for instance, a three-month suspension for two convictions, the costs and the time frame to appeal a decision by the administrator are extremely onerous on a small business. As the minister will know, right now to get before the Supreme Court is a lengthy process, given the workload that's presently there. Not only that, but it's a very costly process. I'm concerned that the only avenue for appeal that the small business person has is an extremely expensive one. In essence, I would suggest that you may as well say....

For many small businesses, they would wait it out, rather than enter into an appeal process, because of the costs. Has the minister given any consideration to another form of appeal that would not be so onerous on a small business individual?

Hon. P. Ramsey: The first venue which somebody who is charged or who commits an offence under this act has is, of course, to deal with the original charges and to contest those in court. I would suggest, hon. member, that that's the prime area where I would expect a particular vendor or dealer would seek to contest it. He or she would be well aware of the number of convictions that he or she has incurred in the previous 60 months and would know very well whether another conviction would result in suspension of the licence for a shorter or longer period of time. That would be the initial avenue for appeal.

I must say that right now we're back into the "create more bureaucracy versus create less bureaucracy" argument. There are other ways: establishing an administrative appeal tribunal. Clearly, establishing that would be cumbersome; it would require a considerable amount of regulation and apparatus. That is the alternative to the courts. We chose to put the courts in as the avenue of appeal.

Section 3,

section 3.8 approved.

Sections 4 to 8 inclusive approved.

section 2.

[ Page 15066 ]

Hon. P. Ramsey: I thank the member for allowing me the chance to set this aside and consult further with staff. The difficulty I was having was that on reviewing the full

section 2 of the Tobacco Sales Act, it was not clear to me on the surface that it prohibited us from seeking a conviction of an individual who was selling tobacco without a licence. Indeed, at the end of my review of it I would submit that we do have the ability under

section 2 to choose to ticket an individual who is offering products for sale.

The difficulty here is that there are actually two acts that apply. One is the Tobacco Tax Act, which says that if you're going to sell tobacco products, you have to have a vendor's licence. It's an offence under that act to sell tobacco without that licence, as I understand it. There is a possibility that this act could also be used if a person commits an offence by selling tobacco to an under-age person, whether or not that seller has a vendor's licence. It is our expectation that we would be using this act and the definition of a "person" to refer to vendors who have a licence under the Tobacco Tax Act.

We are, quite frankly, consulting now to see if there are specific circumstances where we might use this act or these sections to say that the selling of tobacco by an individual constitutes an offence.

L. Fox: I'm not sure I understood all that. I'm not a lawyer, but first of all, this legislation does not contain within it a definition of "person." I have the original act that this amends; I'm looking at it. I'm not confident that the minister may use an action clause contained within a piece of legislation to prosecute someone when there isn't a penalty to enact for an individual who is not a licensee identified in that legislation.

I am told, and we have been told all the way through this legislation, that the only action this legislation has with respect to sentencing -- indeed, we spent some time on it -- is the removal of the licence that enables a business to sell tobacco products. Perhaps the minister would clarify that for me.

Hon. P. Ramsey: At risk of revisiting sections that we have already passed, I would refer the member to

section 5, which sets out penalties for offences to regulations made under sections 2 or 3.1(4). It provides very clearly for fines of up to $500 or "imprisonment for a term not exceeding 3 months, or to both the fine and imprisonment" for a first offence, and fines up to $1,000 or "imprisonment for a term not exceeding 6 months" for subsequent offences. These are, as I understand it, a continuation of existing provisions of the Tobacco Sales Act. The additions in this act include the ability to suspend licences.

It was the view and the advice of the members of the select standing committee and others that withdrawal or suspension of the right to sell products constituted a far more significant penalty than a particular fine.

L. Fox: This puts new light on

section 5. Not getting

section 2 dealt with prior to dealing with

section 5, I did not understand that

section 5 would be for an employee of a respective company. If the minister is telling me now that it is an employee or any individual who sells cigarettes -- even if it's me personally who sells cigarettes to an under-age minor -- then perhaps there's a reason to revisit

section 5, because now we have some clarification of what

section 2 meant. If we are being told that this is an action that can be taken against an employee, that an employee of a company could be fined up to $500 or face imprisonment for a term not exceeding three months, then I guess there's some comfort in terms of the fact that a company is going to be protected from an employee that is not following the laws when they have been instructed to do that. There's some comfort with respect to that; I guess I'll just leave it at that.

Hon. P. Ramsey: We are revisiting a lot of ground here, some of which was debated last year when this act was brought in.

Let me just say this. The act contains the provision to convict an individual. This would be used, I submit, in cases where an individual was clearly acting contrary to the instructions of their corporation and violating the act. That's when we would wish to convict an individual, hon. member. I hope that deals with that.

As far as

section 2 goes, let me again state that I think it is theoretically possible that this

section in total might be used to seek conviction of an individual dealing in the sale or distribution of product, rather than a vendor.... I think it is extremely unlikely. The practical difficulties of enforcement -- proving the offence and Crown counsel believing in the likelihood of conviction -- simply get immense. I find it theoretically possible, but not very probable.

V. Anderson: I would just make one comment. When you point out the implication of

section 2, which happens to go with

section 5, that's a special concern for employees. If somebody comes in for work for a day or something, making sure they're aware of the significance of this and its implications is, I think we can say, the responsibility of the employer; but it also puts onus on us to protect some employees who come on part-time, don't get the proper introduction and could step over the line very easily without the.... It's just a responsibility of making sure they're aware of this.

Hon. P. Ramsey: I don't wish to prolong the debate on this section. I say only that the regulations require that a sign be posted, visible to the seller, that states very clearly what the regulations are for selling to those under the age of legal purchase of product.

[8:30]

L. Fox: Perhaps it might be worthy to also have a very visible reminder for those employees of what penalty could be inflicted on them as individuals should they contravene the intent of the act. It would be right there, in front, readily legible to the particular employee, so they're well aware that if they sell a package of cigarettes -- even though the corporation has done due diligence in terms of educating and making them aware of this legislation and the impact on the business -- they personally face the possibilities of this action under

section 5.

It might be a worthy objective, I guess, to try to have that kind of very small notice about the sale of cigarettes visible somewhere.

Section 2 approved.

Title approved.

Hon. P. Ramsey: I move the committee rise and report the bill complete without amendment.

[ Page 15067 ]

The House resumed; D. Lovick in the chair.

Bill 21, Tobacco Sales Amendment Act, 1995, reported complete without amendment, read a third time and passed on division.

Hon. P. Ramsey: I call second reading of Bill 31.

MUNICIPAL AFFAIRS STATUTES AMENDMENT ACT, 1995

(second reading)

Hon. D. Marzari: It is my pleasure to put forward Bill 31 for second reading. This proposed legislation contains some housekeeping provisions designed to meet some specific needs in the communities of Abbotsford and Dawson Creek, in the city of Vancouver and in the Greater Vancouver Sewerage and Drainage District.

For Abbotsford, the legislation validates the letters patent incorporating the new municipality created by the amalgamation of the district of Abbotsford and the district of Matsqui as a city. Under

section 20 of the Municipal Act, the new municipality would normally be defined as a district. In this instance, our government wanted to recognize the special circumstances of the amalgamation by giving city status to the newly incorporated municipality.

For Dawson Creek, the legislation will ensure that residents will continue to enjoy a reliable supply of natural gas. It accomplishes this by enabling the city to renew a natural gas franchise agreement without the assent of the electors, as has been done for a period of years. This gas service has been in place for 42 years, and there do not appear to be any alternative suppliers. If the existing service was interrupted or put at risk through a failed referendum, residents could be left without a fuel source that they have come to rely on.

In this case, the question was not which supplier should provide the service, but rather whether the community would continue to be supplied with service at all.

Two of the provisions address issues of concern to the city of Vancouver. The first relates directly to the success of the Arbutus neighbourhood plan. The plan calls for a major park, which the city intends to finance through the community amenity contributions from the owners of large comprehensive development properties. The owners have agreed to provide these contributions to help develop the park, and other owners of property to be developed will pay a development cost levy to fund the day care and the street upgrading.

All owners of property to be developed will contribute, but the city needs a legal framework to charge either the community amenity contribution or the development cost charge -- the city cannot charge both. In practice, this means that the city requires the clear authority to not impose a development cost levy on those properties that have agreed to provide community amenity contributions. Without this authority, the park plan would be in jeopardy.

The second provision requested by the city of Vancouver amends the Vancouver Charter to enable the city to implement an extra heritage density transfer system. Under this system, Vancouver would have explicit authority to grant density bonuses that could be transferred to other sites in specific zones as compensation for the designation of a heritage property.

Vancouver has expressed concern that the present system does little to encourage developers to accept density that could be transferred to them from a designated heritage property, because they must still apply for rezoning on the site that is to receive the extra density. Under the proposed system, the extra density could be sold or transferred to the owner of a site in a zone that is predesignated as being able to accept the extra density from a heritage property.

With the amendment, extra density from designated properties will become a marketable commodity that should assist in making the preservation of heritage properties more economically attractive.

Bill 31 also amends the Greater Vancouver Sewerage and Drainage District Act in a way that will preserve service levels for solid waste disposal and recycling programs without increasing the tax burden. The amendment will enable the district to charge a levy to all generators of solid waste within its area or within a municipality that has contracted with the district for solid waste disposal. The levy, combined with the reduction in tipping fees at the district's facilities, is intended to provide an incentive for all waste haulers to use the district's facilities.

The new levy will not represent an increase in the current fees, and consequently should not represent an increase in garbage collection fees for the consumer. What the levy will provide is flexibility, so the district can design a more competitive pricing structure, which will keep the facilities working to capacity and thereby avoid cutbacks in service and cost increases for taxpayers.

Finally, Bill 31 contains provisions to ensure that the Freedom of Information and Protection of Privacy Act and the election provisions of the Municipal Act and the Vancouver Charter are not inconsistent with respect to election materials. These amendments have been requested by the municipalities involved in every single case. They respond to very specific community needs.

I'm happy to move that Bill 31 be read for the second time now.

A. Warnke: The official opposition critic, the member for Saanich North and the Islands, has had a good detailed look at Bill 31 and saw no objections. Since he has no desire to be on television, he says let's pass it.

Deputy Speaker: I suspect this may be an augury of things to come.

L. Fox: I, too, have looked over this bill and in terms of the principle of the bill find it very difficult to find a lot to debate. There is, however, one issue that comes forward in my mind. Each year over the course of the last four years that I've been in the House, we've seen numerous pieces of legislation -- at least one piece every year -- which have allowed one community or another throughout northern British Columbia to sign franchise agreements with the respective gas companies. We saw one last year, and Fort St. James, Fraser Lake,and so on.

It seems to me that we need some kind of long-term process or mechanism for allowing this kind of thing to take place and happen. It would be preferable, in my view, if we had legislation come forward that gave municipalities the ongoing authority to enter into agreements such as these franchise agreements, because it only makes good sense. It's in the electorate's best interests and would prevent a lot of

[ Page 15068 ]

drafting from year to year by the Ministry of Municipal Affairs people in order to accommodate individual municipalities.

With respect to the other issues contained in this bill, I look forward to the committee stage of the bill to address the specifics of those clauses.

Deputy Speaker: Seeing no further speakers, I recognize the minister, whose comments will close second reading debate.

Hon. D. Marzari: In concluding the second reading debate, I will simply say to the member that perhaps we can discuss your recommendation during the committee stage. The same thought has occurred to me. I'm sure it's out of an abundance of caution that, in fact, we bring forward these MEVAs on a year-to-year basis, so that we don't transgress on the taxpayers' ability to go to referendum on servicing contracts.

However, these contracts are so obvious -- because there's no real choice as to how a community is going to receive natural gas in these particular cases -- that it would probably streamline the system if we concocted language that would exempt particular franchise agreements for particular communities, with taxpayer consent. I believe that last clause is the pertinent one here.

With that, I move the close of second reading.

Motion approved.

Bill 31, Municipal Affairs Statutes Amendment Act, 1995, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

[8:45]

Hon. D. Marzari: I call committee stage on Bill 19.

HOME OWNER GRANT AMENDMENT ACT, 1995

The House in committee on Bill 19; H. Giesbrecht in the chair.

Sections 1 and 2 approved.

Hon. D. Marzari: I move the amendment standing in my name on the order paper.

[SECTION 2.1, by adding the following:

2.1 Sections 2(2)(a), 3.1(3)(

a) and 3.2(3)(

a) are amended by striking out "age 65," and substituting "age 65 or older,".]

This amendment, along with the amendments to sections 3 and 14 also standing in my name, is required in order to clarify the eligibility of persons over the age of 65 for the additional homeowner grant. It's a minor change, and it's required to remove any possible doubt that the words of the act make persons who are age 65 or older eligible for the grant.

Section 2.1 approved.

section 3.

Hon. D. Marzari: I move the amendment standing in my name on the order paper.

[SECTION 3, in the proposed

section 3(3)(a), by striking out "age 65," and substituting "age 65 or older,".]

This amendment is required for the same reasons I described in moving the previous amendment.

Amendment approved.

Section 3 as amended approved.

Section 4 approved.

section 5.

A. Warnke: I guess

section 4 also begs the same kind of question. Under the reference to the federal act in

section 5, could the minister describe very briefly what seems to be an anomaly here as it affects veterans. She may refer to

section 4 as well -- just a quick rationale on the purpose of sections 4 and 5.

Hon. D. Marzari: In

section 5, it's simply a change in the name of a federal act. It was previously the War Veterans' Allowance Act, and now it's the Merchant Navy Veteran and Civilian War-related Benefits Act. In

section 4 it's the same thing: a change in the federal legislation.

Section 5 approved.

section 6.

F. Gingell: I'm sorry I wasn't here for the start of this. I was suddenly advised earlier that the Finance estimates are up tomorrow, so I was busy working on that.

Section 6, as I understand it, deals with the issue of expanding the homeowner grant to a new series of eligible recipients. I wonder if the minister -- if she hasn't already -- could just briefly explain who the extra people are that have been included.

Hon. D. Marzari: The act is basically amended to include housing cooperatives and housing societies in the provisions of the homeowner grant. A housing cooperative is being defined as a building owned by a housing cooperative association and used to provide residential accommodation in both strata-titled and non-strata-titled buildings. Housing society buildings are buildings owned by a society and used "to provide residential accommodations for persons who hold from the society rights to occupy the accommodation that were acquired for at least the applicable amount prescribed under

section 14...." So housing societies where seniors buy in and basically hold almost a cooperative title in that society are now eligible for the homeowner grant.

F. Gingell: Would it be fair to describe this as the first move toward allowing people who do not own the property to be eligible for the homeowner grant?

Hon. D. Marzari: This draws the line in a slightly different place than it is presently drawn, to allow homeowners who happen to own shares in a society or in a co-op society to

[ Page 15069 ]

qualify. These units are very close to traditional fee simple ownership. Residents certainly have pride of ownership in every sense of the word. Consequently, although we wouldn't say that these are traditional fee simple forms of tenure, they do reflect a growing number of new ownership tenures. This brings our homeowner grant in line with what is now happening in the marketplace and inside cooperative associations.

F. Gingell: You would liken the circumstances of the property owners that are now brought in to those people who own residential units through strata corporations and strata titles.

Hon. D. Marzari: Yes, strata owners now qualify for homeowner grants. Surprisingly, a cooperative association that may have strata within it does not qualify, although the strata units that it might own do receive homeowner grants.

F. Gingell: Have any of these organizations that own the properties been the recipient of government grants for low-cost housing and those types of arrangements?

Hon. D. Marzari: Yes. Under CMHC provisions for cooperative housing, many of these units -- most of these units -- have received a preferential break on a mortgage, perhaps anywhere up to 30 years ago.

F. Gingell: There is a growing number of seniors' housing projects that are owned through organizations like Abbeyfield, where small numbers -- somewhere normally between eight and 12 seniors -- are housed in a community home. Each has his or her own unit, but it's all part of a communal living arrangement. In normal circumstances, those properties are owned and operated by charitable organizations. Has there been any consideration to include this type of organization?

Hon. D. Marzari: In response to the member's question, the provisions here would only relate to those societies where the individuals have paid a considerable amount -- and that amount will be determined by regulation -- towards their sense of ownership in that society. So nursing home arrangements, no; but societies where there is a kind of individual involvement in payment towards the society for ownership or a share in that society, yes. The act would go that far. It's obvious to me, and it must be to the House, that as new forms of tenure emerge, we must use the act flexibly. This act gives us the opportunity to take a look at opening up the

definitions of tenure as new forms emerge every day.

D. Jarvis: I'd like to ask the minister if this is applicable in the same situation with a shared interest -- which, as you know, has been in the news lately -- as a means of getting around the Condominium Act, which you have since changed. Does the homeowner's grant still apply to them?

Hon. D. Marzari: There have been amendments made to the Condominium Act that will basically make the arrangement that the member is referring to much less attractive to developers, so I don't think we'll be seeing that form of tenure coming on the market.

D. Jarvis: I appreciate that the changes have been made, but there are existing ones out there now that were formed prior to the changes coming through your ministry several weeks ago. Those shared interests in an apartment block that they've strata-titled in a roundabout way, do they not apply? Do they not qualify for the homeowner's grant?

Hon. D. Marzari: I am informed by staff that this act does not make provision for them, because they are not strata-titled.

Sections 6 and 7 approved.

section 8.

F. Gingell:

Section 8, as I understand it, gives an extension of time for individuals who will now qualify for the homeowner grant. Will this extension allow them to go back and claim homeowner grants for previous years when they were not entitled? Perhaps the minister could also advise which taxation year it is that will be the first one eligible.

Hon. D. Marzari: There will be no retroactivity except in the calendar year that municipal governments operate by. So that goes back to January 1995.

Sections 8 to 13 inclusive approved.

section 14.

Hon. D. Marzari: I move the amendment to

section 14 standing in my name in Orders of the Day.

[SECTION 14, by adding the following subsection:

(3) All grants made under

section 2(2)(a), 3(3)(a), 3.1(3)(a), or 3.2(3)(

a) of the Home Owner Grant Act before 1995 to a person who was or attained age 65 or older in the applicable year are confirmed and validated as grants under the Home Owner Grant Act]

Again, the amendment is required to remove any doubt that persons who were older than 65 and who have received the additional homeowner grant in the past are still eligible for that grant.

On the amendment.

F. Gingell: Does this act deal in any way with allowing individuals who are over the age of 65 to apply for tax deferment on their property taxes?

[9:00]

Hon. D. Marzari: No, this act doesn't relate to the tax deferment program. But obviously, the act that does permit that -- that program -- is ongoing, and seniors are eligible to apply for that.

F. Gingell: I appreciate that we are not strictly within the terms of this act. But has the ability to...? I hope that the committee will forgive me for asking this question, but are those people over 65 who are members of a housing cooperative or a housing society presently able to apply for a tax deferment on their portion of the property taxes that apply to the total property?

Hon. D. Marzari: I don't have an answer for that question right now, since the deferment program is not under the

[ Page 15070 ]

jurisdiction of Municipal Affairs, but I will let the member know what the situation is there, and if....

I informed the member before that seniors were not eligible for homeowner grants if in fact they deferred their taxes. I have just been informed by staff that in fact they are eligible for homeowner grants, because the taxes, of course, are simply being deferred and will be paid at a future date.

Amendment approved.

Section 14 as amended approved.

Section 15 approved.

Title approved.

Hon. D. Marzari: I move that the committee rise and report the bill complete with amendments.

Motion approved.

The House resumed; D. Lovick in the chair.

Bill 19, Home Owner Grant Amendment Act, 1995, reported complete with amendments.

Deputy Speaker: When shall the bill be considered?

Hon. D. Marzari: By leave, I move the bill be read a third time now.

Leave granted.

Bill 19, Home Owner Grant Amendment Act, 1995, read a third time and passed.

Hon. J. MacPhail: I call second reading, continued debate, of Bill 16.

CLASS PROCEEDINGS ACT

(second reading continued)

J. Dalton: Even at this relatively late hour, I'm sure we can proceed and make some inroads on the implications of this class action bill. The hon. Attorney General this morning was rather brief in his submission on second reading, and in essence all he told the House was that this will open up the justice system, provide access through class action process and that "people were consulted widely." I will be making some comments about the consultation process.

It seems that every time I'm on my feet speaking on a bill, the one theme that is very consistent is that there has been a lack of consultation, and this bill is certainly an example of that. I will start on that particular topic: the failure of this government, once again, to adequately consult, or even consult at all, the people affected -- in particular, the Law Society and the bar of British Columbia. After all, they're the people that are going to have to live with this bill.

I have in my hand the consultation document, as it is kindly called, which was prepared by the Ministry of Attorney General in May 1994. It was circulated, but there are some comments I'll be reading in a moment that would indicate that the circulation process was not as extensive as it should have been. However, there is material in the consultation document that is useful, and some of it has found its way into the bill that we're dealing with at this moment.

The British Columbia civil litigation

section of the Canadian Bar Association has commented at length to the Attorney General on a submission that they made to the consultation document. By the way, the consultation document called for submissions by sometime in the summer of 1994, so there wasn't a lot of time for this document to make the rounds. I'm glad to see that the Attorney General is here to hear some of these comments. The Canadian Bar Association responded in September 1994. I'm going to read some of the information from this document into the record, because I think it's helpful for the House and, I hope, for the Attorney General to hear what the Canadian Bar Association had to say about this.

By the way, we should not be left with the impression that this bill is necessarily wrong. This is a process bill, and I don't think anybody would quarrel with the fact that class-action legislation in some form, or at least an amendment to the rules of court, was long in order in order to allow people who would normally be shut out -- either through costs or other processes -- to gain access to the civil process. But I'm not so sure; I'm not entirely convinced that this bill is going to hit the target. We'll have to see. It may very well be that at the committee stage we're going to have to introduce some amendments to try and tidy up the things that are missing.

Now, let's see what the B.C.

section of the Canadian Bar Association had to say about the consultation document. Page 1 of the submission of the Canadian Bar Association -- and it's a 27-page submission: "We were surprised to learn that the Law Reform Commission of British Columbia has not been consulted concerning this proposed legislation; it apparently had no hand in the drafting of the consultation document, nor has it been asked to review it." So that's this government's definition of consultation. Once again it's the same old theme.

It's too bad that nobody over there is listening, because I don't know how many times you have to tell them. If you're going to do something of significance in the way of legislation, if nothing else, it would be at least polite to let the thing make the rounds of the province and give people time to reflect upon it. That has not happened.

I have another comment, from page 2 of this same document: "...we think the judiciary should also have the opportunity to review and comment in detail upon the possible changes to the Rules of Court that might be required...." I don't know whether that has happened. Perhaps the Attorney General will have an opportunity on that topic, either in his wrap-up comments or when we get to committee stage.

Let's go on. There are other problems with the consultation. I have talked to several lawyers about the bill. When it hit the floor on first reading, I immediately made sure that several people in the B.C.

section of the Canadian Bar Association had copies, and some of them already had access to them. I must say that they were almost unanimously surprised that this bill had been tabled, because they didn't know it was coming down the pipeline. They knew eventually something would be coming, but the people did not know that this particular Bill 16 was going to be tabled when it was. And that's a bit of a slam in the face of these people, because they're the ones who have to live with it, and they are the people who have had the opportunity to present submissions to the Attorney General. The consultation process has collapsed once again.

[ Page 15071 ]

The paper goes on to deal at length with the experience in other jurisdictions -- Ontario in particular, and some of the U.S. states that have class-action legislation or provisions in their rules of court. Let's see what the Canadian Bar Association has to say.

On page 3 it says: "...the fact that these are worthy goals" -- and of course, the worthy goals are the access provisions and the fact that through this legislation people will collectively be able to gain more effective and less costly access to the courts -- "should not blind us to the very real problems that have been associated with class actions in other jurisdictions...." Then they go on to quote the words of Justice Medina in the U.S. Court of Appeals. He has some interesting comments about the American class-action experience:

"Class actions have sprouted and multiplied like the leaves of the green bay tree...Thus class actions have been brought 'on behalf of all subscribers of business telephones in New York County, all MasterCharge credit card holders...all consumers of gasoline in a given state or states, all homeowners in the United States, and even all people in the United States'."

These are not my words. I'm not suggesting that that's the road we're going down -- heaven forbid. But I think we all have to be aware that there are pitfalls out there when you put in a very significant change in the process in the rules of the court, or court procedure. There may be things hidden away in this document and this bill that we have to be concerned about.

Let's look at Ontario -- the cousins of the NDP government here, but not cousins for very long. What is today -- Tuesday? Two more days and those cousins are finished. Although I suppose we should be looking at the borders of this province. Come Friday morning, there should be an avalanche of N-Dippers proceeding west from Ontario, because the trough will be empty there, and the trough here will be getting deeper and bigger. We'll need more carpenters to cobble that one together.

The Ontario experience.... They've had 11 certifications or applications to be certified under their act since 1992, and five of those 11 applications have been certified. We don't know whether that's a good experience or a bad experience -- I'm just making reference to that very fact.

There is a comment on page 4 of the Canadian Bar Association paper on the Ontario experience: "...one finds little in the way of principled consistency in the first four certification motions to be heard in Ontario...." As I say, they've had 11 in total since that bill was.... There may be more than the 11 since this paper was authored, but that was the experience up to September of last year. So again I make reference to the House with my comments about the inconsistent court decisions in Ontario dealing with the process.

Let's just look at two or three things in the act itself that either differ from the Ontario statute or are maybe patterned after it. Again, we have to keep these things in mind, because what has happened in other Canadian jurisdictions in particular obviously is of importance to us as to how we may be implementing this process in British Columbia.

[9:15]

The question of numerosity is raised on page 6 in the Canadian Bar Association paper. This, of course, is dealing with the number of people who would be permitted to submit an application in order to be certified as a class-action process. In our bill, it's two or more. By contrast, in some American jurisdictions, the class must be so numerous that joinder of all members is impracticable. There's not going to be any consistency there, though I must question.... Perhaps the Attorney General can keep this in mind when we get to committee stage.

I think we have to find out why two or more was the agreed figure here, because two people doesn't seem to me to make much sense as a class action, potentially. I would think we have to be examining the possibility of, not necessarily a multitude, but certainly a number of people. Two or more doesn't seem to fit into that theme.

The document goes on to talk about commonality, and there are other things as well. Most of this, by the way, has found its way in some way, shape or form into the bill that the Attorney General has presented, and so at least I will give him credit for one thing. Some of the things that the Canadian Bar Association has commented upon, whether due to accident or otherwise, have in fact found their way into the bill, and that's good.

The question, though, of costs in

section 37 is one that I would like to flag now, because it's rather interesting when you compare what we've done in British Columbia to what Ontario has done. On page 19 of the document -- and this is taken from the Attorney General's consultation document that they're referring to -- the Canadian Bar Association comments that the proposed legislation.... I don't think that's quite an accurate statement. What was contained in this AG document, of course, wasn't the proposed legislation, necessarily; it was a document that was intended to make the rounds so people could be thinking about what the legislation might contain.

"The proposed legislation states...that 'costs shall not be awarded to any party in a class action at any stage of the proceedings...except where there has been vexatious, frivolous or abusive conduct on the part of any party'." That, in fact, is our

section 37. Ontario's Law Reform Commission, by the way -- which, unlike ours, was invited to really get involved in the process -- made a recommendation that there be a no-cost rule. That recommendation was rejected by the drafters of the Ontario act. Again, I would like to flag for the consideration of the minister, when we get to this in committee stage, the question of why the recommendation of the drafters of the Ontario act is different from what we've implemented here.

I think the other question I would like to note at this time is: why is it, then, that in a case such as a class action, which we're contemplating through this act, we're not allowing costs in the normal course of events, when, of course, costs normally follow the event, as they say? That is, the costs go to the successful party in a civil litigation matter.

One other quote from the document: "Costs may well deter the bringing of actions lacking in intrinsic merit, and that policy goal is one that supports the traditional rule of costs following the event." So I have to wonder, again, why costs do not follow the event in the B.C. act. There may be a contradictory aspect of this bill; we're trying to open up the process and provide access, as the Attorney General commented in his brief comments this morning, to the civil process, yet we are saying to potential litigants: "Well, good luck.

You may win your case, but you're not going to be awarded court costs as a normal result of being successful." We shouldn't be perceived as shutting the door if in fact we could rethink that particular aspect.

Those are some observations about the content of the bill itself. Again, I would just remind this government once again

[ Page 15072 ]

that the consultation process has certainly fallen short. This bill is going to be an interesting one as we deal with it in second reading and as we go through committee stage. It's an important process, one that's long overdue, and I'm just hoping that this government has thought it through adequately so that when and if we put it into law, it will prove to do what I'm sure the Attorney General and his colleagues hope it will do, which is to truly provide access for people who have been aggrieved.

Of course, we can think of the breast implant cases and others of that nature that have certainly caused some concern, and rightly so, and controversy within the litigation process in this province. With those remarks, I look forward to hearing from colleagues who also have some things to say about this bill, and in committee stage we can address the other issues.

L. Stephens: I have a few brief comments on second reading of Bill 16, the Class Action Proceedings Act. I believe that this is an important piece of legislation for individuals to be able to join together in a common cause to seek justice and compensation. I think the intent of this legislation is to level the playing field, in terms of groups of people sharing the same resources. This should mean that one lawsuit will be cheaper and more efficient than individual claims.

Where this legislation is going to be most appropriate is in the appalling cases of the silicone breast implants. There are too many of these cases in documentation -- cases of women who have endured agony and serious health problems related to these implants. I have received correspondence from individuals about these kinds of issues, and in principle I think this is a desirable piece of legislation. During committee stage there will be some specific questions about specific sections of the bill that our critic has identified, and they will be scrutinized further.

But I would like to say that in principle, and for the reasons I have outlined, this bill will serve a large number of our citizens well.

M. de Jong: In second reading on this piece of legislation let me begin by saying that I don't see this as a particularly partisan piece of legislation. The government and the Attorney General have moved to address an issue that has been of longstanding concern to British Columbians. That relates to the cost of litigation, which is high in any case -- too high, I think -- and we have heard that from certain members in the House on many occasions in the past.

In any event, it becomes particularly distressing when one sees high cost and duplicated actions, and though there have been provisions in our rules for some time that allow for a joining of actions, it has generally been regarded that those provisions are inadequate insofar as certain causes of actions are concerned.

As we embark upon the debate and study the bill in committee stage, I will be endeavouring to remind the Attorney General, and he may be aware of it, that we think of the applications of

an act of this sort not just in those cases where there may be hundreds or thousands of litigants; but, as one of the previous speakers mentioned, the legislation contemplates much smaller groups -- as low as two, as the Attorney General points out. Much of the value of this bill may be in assisting those smaller groups in reducing the cost and the delays that result when it is necessary to litigate separate actions. It can be as common as a motor vehicle accident where there are similar facts and perhaps an admission of liability. In those instances, this act may also have some application and serve litigants well in terms of reducing the duplication and delays that plague our court system.

When we get to the committee stage, I will also endeavour to point out and query the Attorney General on one aspect of the bill. I'm not sure I find it troubling, but I find it noteworthy, because I think the legislation marks a significant shift insofar as the role of the court is concerned. Ours is a system that for better or worse is founded on the adversarial principle of litigants coming before a passive judge, presenting their evidence and awaiting judgment.

There are sections in this bill that change that, where the court has now been charged or left with the responsibility, or encouraged to play or left with the option of playing, a far more interventionist role insofar as gathering evidence and directing notices are concerned.

One of the sections that this is apparent in is

section 21, where the court is granted the authority to demand or order that certain notices be provided to certain individuals by the parties involved in the litigation. A

section like that can most certainly operate to the prejudice of the parties. It struck me as I went through the legislation that the court was being empowered in this instance to intervene and, in a certain sense, perform a role that has more traditionally been assigned to the litigants themselves. It's done under the guise of protecting the interests of parties. But the question I will have for the Attorney General is: is that an appropriate role for the courts under our adversarial system? Is that something we want the courts to embark upon now, to become involved in the conduct of litigation, rather than simply ruling on the evidence presented to them?

I have some concerns -- and the Attorney General will hear about them, I expect, from other members as well -- regarding the decision.... I recognize that it is a very deliberate decision that has been made with respect to the question of costs. I know that the Attorney General will have an argument to make about why that decision was taken, to provide him with some notice.

My concern extends beyond the pure principle of abandoning the traditional rules with respect to costs, to how this act will operate where it's conceivable that individual litigants will be joining and then later abandoning the class, and how the notion of assignment of costs -- because it's allowed for under certain circumstances, and the court again is provided with very broad discretionary powers -- will play itself out where parties are conceivably joining and then abandoning the action when their interests change during the course of the case.

The rules with respect to costs have been worked out over a long period of time, and in this particular case we are abandoning them. The Attorney General, as I've said, I'm sure will have an argument to make about that, but it's something that I think is legitimately worthy of scrutiny at this stage and at committee stage as well.

As for the procedures that are going to be put in place, there will be some questions at committee stage about representative plaintiffs, the role they will play, and the expectation that the legislation places on a representative plaintiff to present what is, in effect, a plan of action -- and the expectation that the legislation includes that representative plaintiffs must not be in a conflict with other members of the class.

I think I know what the Attorney General is getting at, but I think the argument can be made that whenever you have a representative plaintiff and when you get to settlement, you're always going to have the potential for conflict. That conflict can arise purely on the basis of the ability of one litigant to pursue litigation versus another litigant's inability to finance that litigation. That will undoubtedly influence them insofar as

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entertaining offers to settle and their ability to prosecute the action are concerned. I'll be interested to know from the Attorney General how he feels this legislation will facilitate the playing out of that scenario, where I think an argument can be made that in just about every single case during the course and conduct of the litigation, the inevitable conflict of interest is going to arise amongst certain members of the group -- amongst themselves -- and those members of the class and the representative plaintiffs.

[9:30]

Those are some of the areas that we will be querying the Attorney General on, though as I said at the outset, the principle of providing for class actions in this province is one that I think is worthy of support and will have the support of this member and this side of the House. As I say, I hope the Attorney General will -- and I'm sure he will -- remain mindful of the fact that this is legislation designed to help not just those large groups but also those smaller groups, for whom it provides some relief in terms of costs of litigation.

A. Warnke: I just want to make a few points. Actually, in terms of the specific sections and what not, I'll pursue those at committee stage. But since we're talking about the bill in principle and in general, I just want to reflect on some issues and bring them to the attention of the Attorney General, and I hope to get a brief response. These are just brief questions, but they are nonetheless related to this.

One is that in the American experience, there has been a problem in terms of ensuring the calibre of a class lawyer and that sort of thing, and I'm wondering if the Attorney General has some philosophical view or has thought that one through and has some response to that.

The second is that there is also a view expecting, I suppose, the courts to take a more proactive role in managing class actions. I would like to know how Attorney General sees the proactive role of the courts.

The third is in terms of this whole question of opting in and opting out. Actually, it relates somewhat to one of the latter points the member for Matsqui raised. It's about the relationship between the individuals who are parties to the litigation involved in class action, as opposed to those who are not involved. This raises a question about the effects of judgments in class actions.

I put them in the context of questions. They are sort of general or philosophical in nature, and I'm wondering if some consideration has been given to those kinds of questions, especially based on the American experience. On that, I'll just follow the good wisdom that has been put forward by my colleagues, and I also await the response of the final wrap-up of the minister.

D. Mitchell: I'd like to say a few words on this bill as well. It has been interesting hearing from the lawyer-dominated Liberal caucus this evening on this action -- that's with apologies to the member for Langley, of course. My only suggestion might be that the lawyers in the Liberal caucus should get together, and without charging any kinds of bills to each other, they could probably have all said the same thing once, and it would have been just as easy.

I would like to add a few non-lawyerly comments to the debate on Bill 16, the Class Proceedings Act. I think this legislation has been a long time coming in British Columbia. It really has been a long time coming, and the Attorney General knows that. The United States has had similar class action suit legislation laws for many years. Quebec passed its law in 1979 and Ontario in 1992, after a very lengthy process of review. I think there is some credit that goes to the hon. Attorney General, for British Columbia will now have such legislation as well.

In addition to allowing citizens to join forces to fight worthy battles such as those against manufacturers of breast implants and manufacturers of other faulty products like the radiant heating panels, an issue that we dealt with in British Columbia earlier this year, I wonder if this legislation would actually provide British Columbians with an opportunity for a class-action suit against the Canadian Standards Association on that front. Maybe that's a question I could direct toward the Mi