Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, JULY 24, 1997

Afternoon

Volume 7, Number 8

Part 1

[ Page 6297 ]

The House met at 2:05 p.m.

G. Brewin: Mr. Speaker, it is with some pleasure that I rise on your behalf, in fact, to make an introduction. In the gallery today is John Dennison, who is a good friend of the Speaker. He is a professor emeritus from the faculty of education at UBC. Would the House please make him welcome.

G. Wilson: Hon. Speaker, we have a very special guest with us today, Mr. Don MacGregor. Mr. MacGregor is accompanied by his assistant, Catherine Peterson. Mr. MacGregor, as the House will know, has worked tirelessly to recover the medals of his father, Mr. John MacGregor, the most decorated serviceman in the history of Canada for valour, who served with the 2nd Canadian Mounted Rifles. Mr.

MacGregor is here today to thank the members of this Legislative Assembly and, in particular, the office of the Premier for assisting in getting those medals, and he is pleased to announce that those medals have been recovered for Canada and are en route to Ottawa today as we speak. Would the House please make him welcome and congratulate him on his efforts.

J. Sawicki: I recognize that I've had a lot of guests come to the gallery lately, but I rise today on behalf of my colleagues from Burnaby-Edmonds and Burnaby North to welcome Tom McGauley. He's the chair of the Burnaby library board, and we have one of the best systems, we think -- in the lower mainland, at least. But he's actually here today wearing his other hat as chair of the public library InterLink service, and they've just received funding to keep that very valuable service around for many of our constituencies. Would the House please make him welcome.

I. Waddell: I said some time ago in a previous introduction that I came to Canada 50 years ago this year on the laps of two women.

An Hon. Member: I thought you were 39.

I. Waddell: I am 39. But actually, it was 50 years ago. One of these women is here today, and I've tried for a long time to have her come down. I'm very proud of this. I'd like the House to welcome Jessie Harris, who I call Aunt Jessie, who is a longtime resident of Victoria. She's here with her son Ross Harris, who is a senior executive with B.C. Ferries for the midcoast -- he's done great work there -- and his son, her grandson Matthew Harris. They're with my mother. I wish the House would give them a great welcome.

J. Weisbeck: In the gallery today is a longtime friend, Mr. Colin Worth. Would the House please make him welcome.

G. Brewin: We are perhaps, Mr. Speaker, saving a good one for the last. In the members' gallery is a very special visitor from Finland, Mr. Erkki Tuomioja. He is chair of the Social Democratic parliamentary group in that country and is a former deputy mayor of Helsinki. Would the House please make him welcome.

Hon. A. Petter: I'm pleased to make an introduction on behalf of a constituent of mine, Peter Robbins. I'm pleased to say that with us today is Colin Wood, who is a former federal Forestry department employee, and two guests who are visiting from New Zealand, Jane Breen and Jenny Skerritt. I'd ask the House to join me in making them all very welcome.

Oral Questions

PREVENTIVE SECURITY AT

FRASER REGIONAL CORRECTIONAL CENTRE

G. Campbell: In his 1994 report "Illicit Narcotic Overdose Deaths," chief coroner Vince Cain stated: " . . . I was advised that it is virtually impossible to prevent drugs from coming into correctional facilities." Starting in 1995, the IPSO program was begun at the Fraser Regional Correctional Centre. It did manage to stop the flow of drugs into at least one prison in British Columbia. According to the district director of the Fraser Regional Correctional Centre: "I was amazed with the results that had been achieved."

Will the Attorney General tell us how he expects to stop the flow of drugs into the Fraser Regional Correctional Centre by cancelling one program that did manage to do just that?

Hon. U. Dosanjh: I said yesterday, and I'll repeat for the benefit of all the members: guards investigating guards for criminal activity is not the proper way to go with these issues. I have said there would be a new program in place, and I have determined that it would be in place by October this year. The police will have the lead.

Some team members of the previous IPSO program who are still with Corrections will be participating in a meeting where police liaison will be discussed. They would be getting some training for drug interdiction in correctional facilities. The investigations with respect to Corrections, dealing with drugs and other criminal activity, belong solely to the police force in British Columbia, not to the guards.

G. Campbell: This has been an incredible performance by the Attorney General. We have a program which is stopping the delivery of drugs into correctional centres, stopping illegal drugs coming into a correctional centre. We have a program where 13 officers wrote to the Deputy Attorney General, and she wrote back to them and said: "You know the success of IPSO necessarily means that those staff who have brought drugs into the centre will be exposed." The success of IPSO -- nothing about: "Oh, you shouldn't be doing this. What are you doing, actually stopping drugs in our centre? We wanted someone else to do it."

The fact of the matter is that the Attorney General at least approved of this program. The Deputy Attorney General told them they approved of it. And when in fact they came forward, they were threatened.

The question to the Attorney General is: when the Deputy Attorney General says that this program is working and that she believes that drugs have been brought into the centres, why would he stop a program that was in fact stopping the delivery of drugs into one of our correctional centres?

Hon. U. Dosanjh: I said yesterday, and I'll say this again: the program did have some success. Some of these issues were investigated by police, beginning in September of 1995. They did a thorough and long investigation. They have investigated any allegations that have merited investigation ever since, and they have not been able to find any evidence to substantiate charges.

I said yesterday that the program is being retooled. Some previous members of the IPSO team would be participating in training with the police for two things: one, drug interdiction in that correction facility; two, then to liaise with the police so that guards do not investigate guards. It is not their function

[ Page 6298 ]

to investigate criminal activity; it is the function of the police. So it's important for us to have the police take the lead in these issues. It will be done.

G. Campbell: Ron Leskun acted in good faith on the directions of his district director to clean up the drug problem in the Fraser Regional Correctional Centre; he acted in good faith. Today, here in British Columbia, we read that he fears for his life.

The question I ask the Attorney General is: will the Attorney General do the right thing? Tell Mr. Leskun that he will not be punished for his behaviour. Tell Mr. Leskun that he will be in fact protected for his behaviour and rewarded for the kind of service he's provided to the people of British Columbia.

Hon. U. Dosanjh: I said yesterday that Allan Anderson has a protocol with the police whenever he's investigating independently any issues with respect to Corrections. If there is any evidence of any criminal activity, he has protocol with the police to inform the police so that investigations can take place.

I can also tell the hon. members that there is another investigation by the ministry's team, by an independent contractor into intimidation and harassment -- into several complaints on these issues. There are several investigations. The scope of Allan Anderson's investigation would be broadened. Allan Anderson has seen the letter -- had seen the letter several weeks ago, a letter that was addressed to me on April 30 this year by Mr. Leskun.

It's important for hon. members to remember that there is the rule of law in this land. If there is anyone who provides legitimate information about criminal activity to police, that individual is always protected by the police; there's no question about that. Mr. Leskun would in that regard be protected, as well.

[2:15]

M. de Jong: "I believe that the internal preventive security officer program is the correct approach" -- Maureen Maloney, March 5, 1997. Guards should not investigate guards -- Attorney General, July 23, 1997. Who is right?

Interjections.

The Speaker: Order, members.

Hon. U. Dosanjh: The hon. member certainly isn't right. I have said that inherently, this program was defective. It had some successes, but it had more problems than successes. That is why we now have the kinds of complaints that Mr. Leskun is making.

It's important for everyone to recognize that you would not have, in this House, one MLA investigate another. That's why there is a conflict commissioner in this place. It is important for people to recognize, in very simple terms, that police have the business of investigating criminal activity. I have said the program will be retooled. It will be in place by October this year. It would be beefed up. Police would have a lead role in that program, and it will be done.

M. de Jong: It's incredible how quickly the Attorney General ministry changes its story. Quite frankly . . . .

Interjections.

The Speaker: Order, members, please. Order!

M. de Jong: A man and his family have been tormented for two years. The Premier thinks it's funny. The Attorney General doesn't take it seriously. The Health minister thinks it's funny. He's been intimidated . . .

The Speaker: Matsqui, a question, please.

M. de Jong: . . . and threatened for doing his job.

Interjections.

The Speaker: Members, we are going to get a question.

M. de Jong: You might, if I weren't so disgusted with what I'm hearing from the other side of the House.

The Speaker: Member, I'm not going to ask you again. Please pose the question.

M. de Jong: The district director wrote: "I want to confirm that I have received compelling information" -- this is to one of the guards -- "that you have been and are currently involved in the purchase of illicit drugs to be sold to certain inmates incarcerated at FRCC." The RCMP didn't find sufficient evidence to proceed criminally, but those two guards were not reinstated. Will the Attorney General stand in this place today and state unequivocally that he is satisfied that no guards have been involved in the illicit trafficking of narcotics in that institution?

Hon. U. Dosanjh: As I said yesterday, it never ceases to amaze me. A member as learned in law as the hon. member is should know -- and should well know -- that it is the function of the police in this province to investigate as they see fit. The personnel issues, I don't deal with. Whatever personnel grievances are there are being . . . . Some of them are being investigated. There are collective agreements in place to deal with those issues.

At the end of the day -- I am saying this again -- there will be a program in place. It would not be the IPSO program as of old; it would be a program with the police taking the lead in dealing with criminal activity in the appropriate way. Police have the training to deal with these issues.

Interjections.

Hon. U. Dosanjh: The hon. member just made a comment that families have not been talked to; they've been suffering and nobody has paid attention. I want the hon. member to know that I received a letter from the two spouses of the guards who were harassed. I received letters on February 13, 1997; and on February 14, 1997, the investigation, inspection and standards office started the investigation.

The Speaker: Minister, I'm going to ask you to wrap this up quickly, if you will, please.

Hon. U. Dosanjh: Hon. Speaker, this is relevant information. On February 19, Allan Anderson . . . .

Interjections.

[ Page 6299 ]

The Speaker: Order, members. Members, please. We are going to answer the question quickly -- if you would, minister.

Hon. U. Dosanjh: On February 19, Allan Anderson, the director of the independent investigation, inspection and standards office -- with Don Demers, assistant deputy minister for Corrections, and Ron Williams -- met with these two women. The investigation has commenced. It's been ongoing ever since. The scope of this will be expanded, and there will be a report made public at the end of it.

PREMIER'S POSITION ON FISHING

BLOCKADE AND DISPUTE WITH U.S.

G. Wilson: My question is to the Premier. Yesterday we witnessed an Alaska Senator pass a motion in the Senate calling on the President of the United States to retaliate against Canada for the blockade with respect to the salmon conflict, and we witnessed our External Affairs minister go down to Washington, virtually offering an apology for the action taken by Canadian fishers.

Is it the position of the Premier that the fishers of British Columbia acted in an appropriate manner in taking the action they did against the Alaska ferry?

Hon. G. Clark: I am completely supportive of the courageous action of the fishermen in Prince Rupert in standing up for Canada against the United States. Frankly, I'm appalled at the position of the Canadian government that they are not going to stand with citizens of Canada against a foreign power that is stealing our fish. I think it's unacceptable.

To have the Prime Minister of Canada and the External Affairs minister of Canada not utter sympathy for the plight of fishermen in British Columbia but instead to attack the fishermen for their actions, to attack British Columbia and our government for taking action against the United States, is unprecedented. That Canada would not stand united to fight against a foreign power that is stealing fish from British Columbia is unprecedented and unacceptable.

G. Wilson: It seems that the position of the Premier is at the very least inconsistent with the position he's taken on the blockade of forest roads, first nations roads and other actions that have been taken where third-party interests become quite damaged by exercising those actions.

Will the Premier tell us why British Columbia has not pressed Canada to take this action to the international courts, where the international courts can rule and, by way of injunction, force the Americans to stop stealing Canadian fish?

Hon. G. Clark: I raised that very question with Minister Anderson just a few days ago. The position of the federal government at the moment is that the Pacific Salmon Treaty, although it is a legal document, is not enforceable in a court of law. In fact, both parties must agree before it is sent to court for adjudication. That's their position. We are doing some legal research to see whether in fact British Columbia agrees with that position. But to this date, that is the reason why no action has been taken.

The Speaker: The bell terminates question period.

Tabling Documents

Hon. J. Pullinger: I have the honour to present the annual report for the British Columbia Heritage Trust for fiscal 1996-97.

Hon. L. Boone: I have the honour to present the annual report of the Ministry of Transportation and Highways for 1995-96.

Orders of the Day

Hon. J. MacPhail: In Committee A, I call Committee of Supply. For the information of the members, we will be debating the estimates of the Ministry for Children and Families. In this House, I call Committee of the Whole to debate Bill 41.

TRAFFIC SAFETY STATUTES

AMENDMENT ACT, 1997

(continued)

The House in committee on Bill 41; G. Brewin in the chair.

section 33.

Hon. A. Petter: I move the amendment standing in my name on the order paper with respect to

section 33:

[SECTION 33, in the proposed

section 233(1) of the Motor Vehicle Act, by adding ", on the expiry of the suspension," after "the corporation must".]

Amendment approved.

section 33 as amended.

G. Plant: There are a number of provisions that will be inserted in the Motor Vehicle Act as a result of

section 33 of this bill. The amendments, I suppose, create a bit of a code for the suspension and reinstatement of licences for people who are convicted of particular offences. Where there is an issue about alcohol, I guess either the offence is an impaired driving kind of an offence or there is obvious evidence of that. I guess I want to ask the Attorney General -- ask the minister . . . . There I go again. It must be a death wish for the minister or something. I want to ask the minister to outline, in a very general way, the regime that is going to be given effect by this.

I'm less interested in imposing on him the burden of explaining the procedures for reinstatement and the consequences of driving while suspended than I am in just what the basic regime is that will come into effect here.

[2:30]

Hon. A. Petter: Let me answer generally, and then if the member has more specific questions, I'll be happy to follow up.

The intention here is to provide a system through which those who are convicted of impaired driving offences lose their right to drive for periods of time -- initially for one year, three years for a second offence and then for a lifetime for a third offence, but reducible to ten years if the person can satisfy the superintendent with an approved course of rehabilitation that is satisfactory. There's a ten-year time frame in which any two of those three events must occur, and there's a five-year reach-back.

There was a bit of a question about how far one might reach back. The concern here, I suppose, is that there be some

[ Page 6300 ]

recognition of people's records to date, but not go back so far that people who might not have contested in the past, had they known of these consequences, don't feel unduly prejudiced. So it's a bit of a balancing act, frankly. But after consultation with various groups, it was felt that this kind of approach was one that combined the appropriate degree of punitive action and removal of right to drive -- which is more than punitive; it's public safety -- with incentives for people to not continue to drive in an impaired state. And I hope we've set up a balance that is the appropriate one.

G. Plant: I thank the minister for that helpful

summary.

I want to understand if I can, then, the relationship between this and the provisions in what will become

section 25.1, which we talked about already -- which is the situation where the superintendent thinks there is an alcohol problem and imposes a restriction or endorsement on a licence which then requires someone to take remedial training. Just to explain the question or make it more concrete: if we have somebody convicted of impaired driving and then there is the automatic suspension, I'm not sure when the remedial probationary stuff would actually kick in. I'm just not clear on the interrelationship between the two. If the question isn't that clear, I will try again; but if the minister has a sense of where I'm going, I'd be grateful for his response.

Hon. A. Petter: Well, there is clearly some overlap between the two sections. One preceded the other historically, but the design here is intended to make them work together and be consistent. The previous

section deals with more than impaired driving issues; this one deals with impaired driving issues. The powers to request and prescribe certain forms of remediation, in a sense, flow together from both sections in order to stipulate the conditions under which a person may be eligible to regain a licence. For example, the ability to award a licence in ten years rather than a lifetime will potentially draw upon some of the remediation requirements that a person who is capable of being rehabilitated might go through.

G. Plant: Is it conceivable -- and perhaps even intended -- in the case of people who receive these suspensions of one year or three years or ten years, that at the end of the period of suspension they would still have to satisfy the superintendent that they were able to drive? At that point the superintendent could say, "Well, you know, I still have a bit of a problem or a concern here, and I'm not going to give you your licence until you take this program," or alternatively: "I am going to give you your licence, but you're going to have to take one of these programs." So the two would work together in that way.

Hon. A. Petter: The answer is yes, and in two ways. First of all, a person who, say, had their licence suspended for one year would be required to undertake a course of remediation and to complete that successfully. If they did not do so, then they would not have fulfilled the condition necessary to regain their licence after one year. So the two work together in that sense. The fact that one year has elapsed is not sufficient to regain the licence if the remediation program has not been successfully completed.

In respect of the third incident, the presumption is that the suspension is lifetime, and the onus, then, is on the party to demonstrate some cause as to why it should be reduced. In that case, the form of remediation, therefore, and the burden that flows on that remediation would be in some ways greater, because it is going not just to whether you successfully completed the remediation but to whether the suspension should be converted from the presumptive lifetime suspension to a reduced ten-year suspension. In that way it works a little bit differently, but in much the same way the two complement each other.

G. Plant: Am I right that the best a third offender can hope for is a reduction to a ten-year suspension?

Hon. A. Petter: On a third occurrence within the time frames prescribed, yes.

G. Plant: The minister, earlier, talked about a five-year -- I can't remember what the term was -- reach-back. I take it that what that means is that for the purpose of calculating the various times and numbers of offences, we are going to be able to take into account any offences which have occurred within the last five years. Is that the intention?

Hon. A. Petter: For any convictions within the five-year window prior to this

section coming into place, yes.

G. Plant: I thank the minister for the answer. I am still a little unclear as to concrete examples of circumstances in which the 25.1 powers would arise, given that there is a lot of stuff in this

section about the power to require remedial programs. I think we established earlier that those powers might arise in the context of someone seeking to reduce a lifetime suspension and in the context of someone who hadn't yet successfully completed a remedial program at the end of either a one-year or three-year suspension. I guess the real question is: is there an area or zone within which 25.1 will operate, which does not depend on convictions for impaired driving?

Hon. A. Petter: I just want to get some fuller advice from my staff; I apologize to the member for taking a little time. For the most part, in respect of the narrow but obviously critical issue of drug and alcohol remediation, probably most of the powers that one might draw upon in 25.1 are duplicated in this more specific scheme in which people know the expectations in terms of licence suspension -- although 25.1 notionally is not tied to suspension; it's a more general power.

Where 25.1 clearly has a broader scope is in respect of associated issues that might require remediation, which may arise independently or in conjunction with impairments. You may have a situation in which a person has a record of impairment but also has a record of dangerous or careless driving -- some other indications that cause concern for the superintendent -- and therefore the form of remediation provided for under 25.1 would go beyond drug and alcohol remediation.

It might involve some other forms of training or corrective counselling, or whatever it may be, to deal with that broader set of concerns that suggest that the driver is in need of remedial action before being allowed back on the road.

G. Plant: Lastly, under this general area, I have questions about the establishment of this regime, which I assume will involve designing new programs or getting people within the superintendent's office up and running to administer this system, the cost implications and also timing. What does the government see as the implementation date for these provisions?

Hon. A. Petter: I think we already discussed, in the context of the previous provision, the remediation program itself being cost-recovered from the individual who

under-

[ Page 6301 ]

takes it. There will presumably be some associated administrative costs for the superintendent, but I don't expect they will be huge, especially when you consider that the programs themselves will be covered.

I want to get to the point the member raises, which I think is a very valid one, and that is: there is going to be some time required for the design and implementation of these programs to ensure that they are effective and that people who are referred to them are receiving the kind of remediation that will in fact result in the behavioral changes, and in some cases perhaps the change in terms of addictive behaviour, that will ensure that they can safely be permitted back onto the road.

There is certainly some time that will be taken over the next number of months to get these programs up and to make sure they're properly accredited and that they are meeting the needs that the superintendent identifies.

G. Plant: Well, the minister has left me hanging in one respect. What is the time? Is there an action plan in place, with debt lines and expectations? Or, at the very least, is there an overall commitment to an implementation date?

Hon. A. Petter: I should say to the member that generally there is an implementation plan that was in the process of being developed for this very broad range of initiatives, which has differing time lines. The expectation here is that we're looking at a window of six months to a year to see this fully implemented. There is, fortunately, a bit of time, because even for a first suspension, the suspension is a year in duration.

That gives a bit of time to get the program up and running and in place, albeit we want to make sure, obviously, that the program is available within that one-year window so that the person can undertake an effective program. The best estimate right now is six months, at the inside, to see this program up and running, probably some pilots before then and perhaps as long as a year to see it fully operational provincewide.

[2:45]

G. Plant: Without casting doubt on the wisdom of that timetable -- it sounds like a reasonable one -- I did want to make a comment, though, about one part of what the minister said. The minister took some comfort from the fact that there will be a year in which to get the thing up and running, because there will be one-year suspensions. I think it would be unfortunate if the remedial programs and that whole regime didn't kick in until the end of a suspension period. Now, I know that for the first year that's clearly going to have to be the case.

But I hope that what will happen in the fullness of time is that upon conviction, people are immediately told to undertake these programs. I hope I can get the minister's assurance that that is also his expectation over time.

Hon. A. Petter: Yes, I agree. Obviously it is desirable for the person to be placed into the remediation program as quickly as possible. We are going to have to work through the transition of these programs coming on stream, but I fully agree with the member's hope and expectation.

Section 33 as amended approved.

Section 34 approved.

section 35.

G. Plant: I take it that this fairly elaborate set of provisions is generally designed to deal with evidentiary issues and to expedite the use of electronic records in certain situations. I don't want to oversimplify what all this is, but is that a fair

summary or does it miss something?

Hon. A. Petter: It seems like a fair

summary to me, hon. Chair.

Sections 35 and 36 approved.

section 37.

G. Plant: Well, here I have to begin with the confession that, once again, I have not tracked this through, but the question I raised earlier about ticketed amounts and the victims-of-crime surcharge arises here. I might note in passing that -- at the risk of being facetious -- this may now be the fifth or sixth time in this legislative session that we have decided to amend the Offence Act. Am I safe in assuming that this redefinition of the word "fine" is not going to run afoul of the intention to create this new term "ticketed amount," which includes both the fine and the surcharge?

Hon. A. Petter: I am advised that you are so safe, hon. member.

Sections 37 to 42 inclusive approved.

section 43.

G. Plant: We have, in fact, earlier in this session made some amendments to the Offence Act, which are, among other things, intended to create a process where you no longer have to go straight to a hearing, but you can have a right of first appearance and those kinds of things. I know that interwoven with those kinds of procedural changes is always the issue and the need to ensure that the person who has received a violation ticket knows that he or she is on the receiving end of a charge. I'm not clear what

section 43 does or is intended to do in this regard. If I've missed the point about the section, then I'm sure the minister will correct me. But I'm sort of wanting to make sure I understand what it is intended to do in the context of those other issues.

Hon. A. Petter: Well, perhaps an example will serve. I think this is the kind of situation where, say, someone who's a member of a household, but not the owner, decides -- for helpful reasons, no doubt -- to pay a ticket on behalf of the owner. The owner subsequently finds out, feels that the ticket ought not to have been paid and ought to have been disputed. What this

section then facilitates is a process through which the owner can file an affidavit in court stating why he or she didn't have an opportunity to dispute the mailed violation ticket, which then allows the judge to strike the conviction and hear the dispute. So it really protects the rights of owners, who might otherwise be prejudiced by the actions of others on their behalf.

G. Plant: Taking that example, which is very helpful, and turning it the other way round, what happens if the officious bystander -- that's the term, I think -- decides to be helpful not by paying the fine but by sending a dispute notice and then failing to appear? So there would be a non-appearance. That usually means that there would be a conviction entered, but it would have happened in circumstances where the real owner of the vehicle never really had an opportunity to know that there was a charge outstanding.

[ Page 6302 ]

Hon. A. Petter: That could be the officious bystander or the worried teenager, I suppose, trying to prevent information from seeping through to the parent/owner. Maybe I'm just reflecting my own circumstances in the world.

In any event, the section, as I understand it, covers that situation as well. It would allow the owner to then indicate why the conviction had been improperly entered and the owner had not had an opportunity to dispute the conviction.

G. Plant: What is the time limit within which this opportunity to file an affidavit exists?

Hon. A. Petter: The time is tied to the time at which the person discovered that the conviction was improperly entered. Beyond that, there is no time limit, so if it comes to light years afterwards . . . . It shows how protective we are in this Charter world of those who are incorrectly convicted. Happily, provided the person acts in a timely way once they discover, there is no time limit that otherwise constrains them from acting under this section.

Sections 43 to 47 inclusive approved.

section 48.

G. Plant: I made some remarks about this provision in second reading, because it seemed to me that it's interesting to find a provision as broad as this sitting in the middle of a traffic safety statute. I wonder if I could impose on the minister to explain the rationale for including in this statute an enabling provision which will allow the courts to make rules permitting or requiring mediation to be included in all types of proceedings.

Hon. A. Petter: Reflecting again on the perhaps somewhat conspiratorial tone that was taken by the member in second reading, let me see if I can explain this in ways that reassure him.

This section, while it is of a more general nature, probably would not have come forward in this legislative session but for its relevance here, and that's why it's included in this act. What we want to do is make sure that we provide in this act for changes in rules of court that can require or permit mediation in a way that assists alternative dispute resolution.

Having said that, I think it's well-known to the member that there are other initiatives underway. The Chief Justice of the Supreme Court in the province is himself undertaking consultations. Therefore it seemed wise to provide an enabling provision that went beyond the motor vehicle context, even though it is only the motor vehicle context at this time which is pressing in terms of the need for this. But to provide for the opportunity for rules of court to be made in respect of other circumstances that might require remediation . . . .

Of course, the member is more aware than I am that to promulgate those rules requires in itself a fairly broad consultation process, involving representatives of the Law Society, the bench and others.

So it's true: this does go beyond the scope. But let me assure the member that there was no intention to smuggle something in here. It was, rather, an intention to provide in here for this legislation and to anticipate the fact that something broader will likely be required in the future and therefore to broaden it to encompass that possibility, should it arise.

G. Plant: I'm grateful for the minister's attempt to alleviate my conspiratorial fears. I think there is perhaps a very interesting debate about whether we should leave the issue of access to courts free of mediation as an issue to be resolved by the rules committee, rather than an issue which could be resolved or at least discussed here. Quite frankly, I'm not sure what side of that issue I'd be on at this point.

Interjection.

G. Plant: Thank you. Well, I think the decision is implicit in the presence of the amendment.

I think that the point that I'll leave with the minister, which I'm sure he is as aware of as any other person who cares about promoting alternate dispute resolution, is the . . . . Well, actually, I notice that now we may have an opportunity to hear the Attorney General's view on this important issue.

Here is perhaps the public policy issue. The public policy issue is the distinction between, on the one hand, permitting people to use mediation -- permitting, encouraging and all of that -- and on the other hand, imposing a requirement that they mediate. In some cases, imposing a requirement to mediate may be something that will not in fact save much time, energy or heartache. I'm all in favour of creating a supportive framework to encourage the expansion of the use of mediation, but I'm a big fan of allowing the parties to disputes to have the driving role to play in that determination.

We are here going to allow the rules committee to make rules that could require parties to an action to mediate in some circumstances.

I guess what I would say is that I hope that in this particular case, the rules committee does in fact engage in that consultation process, which they are well known for and which is generally extraordinarily successful. That's really just my comment.

Now to the other issue. It seems to me that virtually everything the minister wants, he gets in

section 44.1. I'm not clear there why, having put into this bill a power which would allow cabinet to make rules -- a court, in effect, with respect to mediation -- or rules of mediation that might bind the parties to disputes arising out of motor vehicle accidents . . . . I'm not quite sure why we need both.

[3:00]

Hon. A. Petter: Well, in response to the latter part of the member's contribution, I think it's true that one could probably provide through the regulation-making authority most of what was required at the appropriate time. But frankly, there is this process involving the Chief Justice and the rules committee. I really wanted, on behalf of the government, to leave open the possibility that this could be done through rules of court if that was considered more appropriate. I think we do need have some discussions with the courts.

This is an important issue, mediation. While it will never preclude access to the courts -- and I think that's an important point -- nevertheless it can have a big influence, hopefully a helpful influence, in terms of enabling the courts to regulate their proceedings and to take some of the burden away from the courts while providing a better dispute mechanism. I really wanted to leave this avenue open so that if it was considered desirable through consultation with the committee and with the judiciary to do some, if not all, of the associated rules that may be required in this context, that was open to us.

The real goal I want to make sure is provided for here is that the mediation process that relates to the automobiles fits with any other mediation aspirations that the courts may have

[ Page 6303 ]

and, even more importantly, that it complements the ability of the courts to resolve disputes in an effective and timely way. I just didn't want to be so presumptuous as to remove what may be a very useful instrument that is relevant to the discussions that are going on right now, which the member has referred to.

[E. Walsh in the chair.]

G. Plant: Is the minister saying that it may be the case that the rules committee will design a set of rules around mediation -- and perhaps they will design it in a larger context -- but the rules will be good enough rules for the minister's purposes in relation to motor vehicle claims so that he will not find it necessary to exercise the powers under

section 44.1 of the Insurance (Motor Vehicle) Act?

Hon. A. Petter: I think it's unlikely that all of the regulations that might be made would necessarily come under court rules, simply because of the fairly protracted discussions that are going on there. I want to leave open the possibility that as we move forward, there can be a division of labour or, if there are generalized rules that are promulgated around mediation in the context of the Court Rules Act, that we don't interfere in whatever complementary regulations we have.

I wish I could be more definitive, but part of the purpose in having both of these instruments is to be less definitive so that there can be meaningful consultation. On the whole question of regulations around mediation, I have indicated that there are some real sensitivities with the bar and with victims' groups and others that it be an appropriate and fair process. I want to make sure that whatever we design is appropriate in terms of effecting dispute settlement and also meets the test of working with the requirements of the judiciary and others in managing the court agenda. So I'm being evasive only because I don't know the answer, and we're trying to keep options open.

G. Plant: I understand why the minister might use the term "evasive," but I think what he means to say is that he is trying to be flexible.

Hon. A. Petter: Thank you.

G. Plant: I think it's important that if that's the intention -- if there is no sort of predetermined conclusion or outcome -- we know that going in, because that's a useful fact. If the minister is in agreement, then that would be helpful.

Hon. A. Petter: Having misused the term "evasive" and being corrected to "flexible," I'm just so refreshed, because normally the process happens the other way, of course. The member would accuse me of being evasive, and I would insist that I was being flexible. So let me withdraw any suggestion that I was being evasive. I was being less than definitive, however, because I was indeed being flexible.

Sections 48 to 50 inclusive approved.

section 51.

Hon. A. Petter: I move the amendment to

section 51 standing in my name on the order paper.

[SECTION 51, in the proposed

section 19.1 of the Insurance (Motor Vehicle) Act, by adding ", other than a motor vehicle or trailer," after "any object".]

Amendment approved.

section 51 as amended.

G. Plant: I think the amendment that's just been made and the fact that it's been made bespeak a good step forward in terms of a consultation process perhaps working, so I want to acknowledge that. But I want to turn to the issues that I think probably remain uncertain.

We have here a

section that is intended to limit recovery, and it is intended to limit the circumstances in which people can impose liability upon ICBC. I think the specific context is litigation where claims have been made arising out of injury and death that have occurred in motor vehicles, where the argument is made that the motor vehicle wasn't really in use as a vehicle and was just a place where people happened to be. I'm not going to try to summarize all that litigation.

I understand what the government wants to do in terms of clarifying that this limitation would not apply or be used in a way where someone could argue that the weapon would be the motor vehicle itself. But what happens when someone is perhaps caught by this exemption in circumstances where an accident takes place where a whole lot of ancillary damage is done that may arise from the use of the motor vehicle? Somebody may be shot in a car in circumstances where the Insurance Corporation coverage would not kick in, but then a person loses control of the vehicle and causes a whole bunch of other damage.

Does the minister have a view about whether or not that ancillary damage would be covered? I think that is an important issue in this context.

Hon. A. Petter: This is one of these tough policy areas in which one is drawing lines along gradations of responsibility. I must say that while I struggled with the amendment and it was a process of consultation, I'm not sure I'm . . . . Like the member confessed earlier that he was on two sides of an argument, I'm on two sides of this argument.

When someone uses a weapon like a gun to injure someone, I'm not quite sure why the person so injured does not receive coverage. But when a vehicle is used as the weapon, why they should suddenly receive coverage simply because the weapon of choice happened to be an automobile . . . . But at the end of the day, I accept the argument that, first of all, the

section was ambiguous. We had to make a choice, and therefore I erred on the side of saying that when the vehicle is the weapon, then coverage should flow.

We do have cases where the only relationship seems to be that the location is a vehicle and someone brings a gun and shoots someone in a vehicle, and I guess some have determined that that might be an insurable interest, and this

section is designed to say it isn't.

Then we get into the question of: where do you draw the line in this continuum? You can't do it by anticipating each and every causal link or connection, so we have done it by using a term that the courts will have to interpret -- and I'm sure will interpret purposively and well -- and that's the notion of dominant cause. I'm happy to say to the member that in the example he gives, it's my expectation that where there is ancillary damage of the kind he refers to that is caused by the vehicle subsequent to injury by a weapon, I expect the courts would find a way to provide recovery, particularly given the amendment I have introduced.

In all of these areas, one relies upon the judgment of the courts to make interpretive decisions that correspond with the

[ Page 6304 ]

underlying intent of public policy, which I think is made clear: the purpose of automobile insurance is not to insure against damage that occurs, the dominant cause of which is due to a weapon, other than -- I can now say, because of the amendment -- the vehicle itself.

G. Plant: I thank the minister for that clarification.

The

section that we have before us also includes provisions that limit recovery in relation to stolen motor vehicles. The only comment I have here is that while I probably have a different view than the minister does on some of the ways in which ICBC and the ministry publicize their activities and what they do, this is perhaps one of those provisions where, if there is going to be a public education campaign, this would be a good thing to include in it. I think this will come as a rude shock to a lot of people.

The overall goal, of course, is not to deprive people of insurance coverage but rather to create a climate in which it becomes safer to drive. So the only question or issue I have around this is to ensure that this is something that is brought to the attention of the motoring public.

Hon. A. Petter: I appreciate the member's comments.

Again, an example for me helps to explain the policy issue and how it has been defined here. If you have a situation where two or three individuals have, in concert, in a common enterprise decided to steal a car, and one happens to be the driver and then gets into an accident, right now the others can sue the driver, if the driver is at fault, and recover, with ICBC having to provide full insurance coverage as though the driver were being sued by an innocent party. What this does is, it says no.

That person in the passenger seat who undertook that criminal activity knowingly and as a participant, accessory or what have you should be no better off than the driver -- should be able to recover the same limited benefits that are available, but should not be treated as an innocent bystander or participant as, say, a pedestrian or someone in another car.

That does send a strong signal that when people enter into a course of conduct, particularly the stealing of a car, which is the most common in the circumstance we're thinking of here, they run the risks. Whether they're behind the driver's seat or they're encouraging that activity by sitting in the passenger's seat or indeed in the back seat, they should run the same risks. They should not be able to position themselves as though they were some kind of innocent party outside the enterprise that caused the accident.

Again, these are choices that are made. But I think this is a move in the right direction from a public policy point of view -- albeit it will have some small saving in monetary terms to ICBC, as well, but in my view that's not the primary motivation.

G. Plant: I want to make one other point in this context, although it's really just by way of an observation on the challenge that will face the courts. One of the phenomena in legislation that I find most interesting is the phenomenon of unintended consequences. The operation of this limitation is conditional on a situation arising where the vehicle is being used without the consent of the owner. Of course, there already is a long tradition in insurance law, including ICBC insurance law in British Columbia, of cases around the question of whether or not a motor vehicle is being used with or without the consent of the owner. I hope this

section will be construed by the judiciary purposively, in a way which does not encourage some kind of accidental new industry around litigating consent in this context, because that would be unfortunate and, hopefully, will not come to pass.

I guess the other issue is that there are two ways that you can deal with limiting recovery. One is that you can limit a person's right to recover at law -- that is, you can limit the liability of somebody altogether. The second way you can deal with it is to limit the Insurance Corporation's obligation to indemnify people in respect of those situations.

That would leave the person, who for the sake of this argument I'll call the innocent victim -- although that may be an incorrect description -- with the option to still pursue the person who was negligent and to take his or her chances with respect to whether or not that individual had any assets that would be worth trying to recover at the end of the day.

It looks to me that this

section makes a public policy decision to limit recovery generally rather than to limit the right of action against the corporation. But that's only because I haven't yet read my way all the way through

section 19.2(2)(a). It may be that (2)(

b) moves us exactly into the second category. Because this is the only opportunity I'll have to get public clarification of that, could I have the minister's confirmation of which of these two categories we're in here?

Hon. A. Petter: No, in fact the choice that has been made is the other choice that the member outlined. It's illustrated in 19.2(2)(b), where it says: " . . . a person referred to in subsection (1) is not entitled to any recovery from the corporation under

section 20."

So let's take the circumstance, and I'll see if I get it right. My officials will no doubt tell me if I don't. In the circumstance I outlined, if the driver were insured, the passenger would not be able to recover against that driver's insurance. If the driver were not insured, the passenger would not be able to recover against ICBC, based on the uninsured-motorist protection. That may be the confusion here. But if the driver has the means and the passenger has the will to pursue a private action, then as I understand it, there's nothing here that prevents that from happening.

What's being prevented is the kind of coverage in which the corporation would stand behind the insurance risk of the driver. In the two instances I've given, what this

section says is that the corporation will not provide insurance on behalf of the driver either as an uninsured motorist or as an insured motorist, in those circumstances.

G. Plant: Picking up on that, the first question that occurs to me is: what, then, is the purpose of subsection 19.2(2)(a)? I don't want to try and unpack all of it. But am I right that it has something to do with the rules of contributory negligence around apportioning fault and ensuring that the innocent victim in this case doesn't have the ability to get through the back door that which we're trying to prevent him from getting through the front door?

Hon. A. Petter: What paragraph 19.2(2)(

a) does is simply ensure that the liability is several, so that you cannot visit the liability upon -- a term the member will appreciate -- the party with deep pockets. You have to in fact visit it according to the apportionment of liability.

Section 51 as amended approved.

Sections 52 to 55 inclusive approved.

section 56.

[ Page 6305 ]

G. Plant: The minister has probably heard more about this

section than I have. The number of voices that I have heard from is growing even as I stand in the House.

Let me begin with a question. It's sort of large, the big-picture question. The criminal law of Canada already makes perjury an offence. If you lie in circumstances where you shouldn't, you can be convicted of perjury and sentenced. The criminal law also has provisions in it around fraud and all of that stuff.

It's not clear to me, really, from a public policy perspective, why we need to duplicate here the provisions of criminal law in this area. Frankly, I have some concerns about doing that. Perhaps I could begin the discussion by asking the minister: why is it that he is of the view that the criminal law is so inadequate that it can't be used in this context?

Hon. A. Petter: The inspiration, if I can use that term, for this section, I guess, comes from some of the Ontario legislation, where in an effort to crack down on fraud and a more broad category of activity that could result in unjustifiable claims, there was legislation that in fact went beyond this. I'm sure it would have occasioned even more telephone calls to the member than he's got today, because the Ontario legislation goes beyond what is false or misleading to include the withholding of information.

After much consideration, it was my judgment that it went too far, opened the door too much, but that the inclusion of the term "misleading" -- which is a very common term, in fact, and I think there's something in excess of 100 statutes on the books that make it an offence or that in some way refer to misleading information -- was a reasonable extension to guard the public interest by discouraging people from making claims against ICBC that were not justifiable.

I'll give you an example. The Environment Management Act offences

section 14(1)(

b) says: "A person commits an offence if the person does any of the following: . . . supplies an environmental impact assessment under

section 3 that the person knows to be false or misleading, or to contain false or misleading information . . . . " That's one such example, and there are many others that are similar.

Looking at the Ontario legislation, we decided that we wanted to send a clear message to people that ICBC was not an institution that was there as an insurer of one's credit card account, but was only an insurer of legitimate claims. I decided to draw the line, frankly, in a narrower place than Ontario had chosen to do but in a place where those who mislead the corporation -- and through the corporation, those who pay premiums to the corporation -- either knowingly or in a way where they clearly ought to have known it was misleading, would be subject to an offence.

Again, I think it's a question of judgment and policy, but clearly there's been a lot of public concern excited around fraud and regarding what one commentator used to refer to as "fraudlets" -- that is, other forms in which people unjustifiably gain benefit. In judging what others had done and what the objectives were, I felt that this was a reasonable place to draw the line.

G. Plant: The question that, at least theoretically, always arises in this context is the question of whether a province is acting within its constitutional powers by creating an offence like this. The last thing I want to do is . . . . Well, actually, in other contexts, I'm sure I'd love to enter into a constitutional debate or discussion with the minister, but I certainly don't think it's going to advance the public policy purposes that we have before us terribly if we have a long constitutional debate here.

The question would theoretically arise whether the province has acted within its powers constitutionally by creating this new offence, whether the province has inappropriately trenched on the exclusive federal power in criminal law matters, or whether the province has lawfully exercised its ability to create offences incidental to regulatory schemes.

I wonder if I could take the point this far -- and it's really only as far as I intend to take it -- by asking this question: has the minister or his staff considered that issue and, having given it that consideration, have they decided to move forward in this way? Alternatively, is the issue one that has not been considered?

Hon. A. Petter: The issue was indeed considered. Whenever one creates offences under provincial legislation, as the member indicates, one wants to be careful that they are sufficiently connected to the regulatory scheme as to not trench into federal areas. Indeed, in this case, this particular provision was reviewed quite closely. It was confirmed, in the view of those who are expert in this area, that in fact this was within the provincial capacity and was a legitimate part and parcel of this provincial regulatory scheme.

G. Plant: Getting closer to the heart of the problem -- looking at

section 42.1(2)(b), we have what I think is a relatively broad statement of what amounts to fraud. A concern is that it is overly broad. To be concrete and to use specific examples -- and I agree with the minister that that's sometimes a helpful way to think about these things -- the

section does not limit itself to the claimant. The

section does not say that someone who seeks to recover under an insurance policy and makes statements that are false, or he knows or ought to know are misleading in that context, commits an offence.

The

section goes much further than that; it in fact encompasses any person. In doing that, it encompasses a whole range of people who are participants in the system of personal injury compensation, ranging from witnesses to traffic accidents -- who are signing witness statements, I suppose, or giving statements to adjustors -- to doctors doing independent medical examinations and, frankly, lawyers. There already are, of course, a host of bad things that can happen to witnesses and doctors and lawyers and other people if they say things which might be false or misleading.

In the case of professionals like doctors and lawyers, they could suffer professional consequences for their actions. It really is a legitimate question: why does this

section go as far as it does?

If we come back to what I think is a legitimate statement of the public policy objective here, we're all in agreement that there has to be a way to stop fraudulent claims. Frankly, I think that most of the legal tools exist already to do that, and the problem has been a lack of will, in large measure, to actually implement them.

But if we're going to create another tool, especially a tool that involves the criminal law, aren't we better off limiting the use of that tool to the person who is actually making the claim, the person who is actually asking the corporation to pay him or her money, as opposed to bringing in this very broad net of people and perhaps creating a bit of a chill around the whole business of giving medical advice and legal advice and all those other things?

Hon. A. Petter: I don't want to engage in a constitutional debate with the member, but I do have to point out that this

[ Page 6306 ]

provision is not a criminal provision. It is a penal provision within provincial regulatory law and does not result in criminal consequences. It may seem like a fine distinction, but I think in fact it's an important distinction.

The reason why one would extend the reach of the provision as far as it is -- and I don't think it is too broad a reach -- is twofold. First of all, the

section is not designed just to deal with claimants but also, potentially, with service providers. You may have those who provide services on behalf of ICBC -- I can imagine body shops and the like -- who then claim money back from ICBC. Clearly one wants to guard against that kind of relationship resulting in excessive claims or amounts being paid out for the service provided.

Secondly, you surely don't want to create a situation in which intermediaries or those associated with someone who may benefit directly can, by being the instruments of the information, somehow insulate themselves or the ultimate beneficiary from liability. This puts the responsibility on those intermediaries. For example, if an employer tries, in concert with a claimant -- and I hate to use these examples, because I like to believe that British Columbians generally are not prone to this kind of activity, but, of course, we're dealing here with worst-case scenarios . . . .

But where an employer would conspire with an employee, out of agreement with or in an understanding with an employee, to provide information to ICBC that created a false or misleading impression about the employment history or earning capacity -- or a spouse were to do so -- surely the member would agree that we do not want to create a situation where one can indirectly, through the use of that intermediary, bring about the result that this

section is trying to guard against -- or alternatively, that those who allow themselves to be the instruments of information that is false or misleading are somehow relieved from responsibility if they place themselves in that position.

[3:30]

G. Plant: I thank the minister for his answer, but I'm not sure that we're there yet. A lot of what happens in the adjustment of personal injury claims and the litigation of them -- the settlement of them -- is that people come into the process as advocates for the victim. Many of those people -- and I'm thinking primarily of lawyers -- have to, in order to do their job, proceed upon certain assumptions with respect to what they're told; it's not their job to question them.

Doctors, who are not advocates but are often called in as experts to present an opinion with respect to someone's injuries, are also given information when they take patient histories, which then becomes the basis for the opinion that they give.

It is clearly not the case that we have a lot of doctors and lawyers in British Columbia who stand up and make false and misleading statements. I don't think the minister would suggest that, and I don't either. But what I'm concerned about is institutionalizing a context where these professionals -- and I think it is particularly a problem for lawyers -- will now have to constantly ask themselves the question throughout the course of the litigation: "Am I now under a duty to investigate whether I have a reasonable basis for believing the statement that I'm about to have to use in some way or another?"

I think it would be awfully unfortunate if we compromised the role and the traditions of advocates in this context, albeit in pursuit of another wise and quite admirable goal, which is to prevent fraudulent claims. Again, I must say that I think the

section as worded goes too far. I think there is a risk. I certainly don't want to be an alarmist about this; I really want, in as objective a way as possible, to state what I think is a legitimate apprehension. I think there is a problem here. Let me just give one more specific example: what does this

section do to the law of solicitor-client privilege?

Hon. A. Petter: Well, I have thought about these issues. Let me see if I can walk the member through it, not in a way that necessarily satisfies him but perhaps at least indicates that there is a view of this that takes account of these concerns.

First of all, the starting point that I would take is that the fact that people are represented -- and they are, in many cases, by legal counsel -- is not a reason to relieve them of responsibility by allowing them to use that intermediary relationship to in some way bear less social responsibilities. So if we don't want people to mislead ICBC -- in this case -- the fact that sometimes their advocacy is brought on their behalf by a lawyer should not be a reason for us lowering the standard with respect to those people simply because of that relationship.

The relationship should assist; the relationship should not be an impediment to creating the right set of expectations. That's the starting point.

Secondly -- and I know the member believes this, but let me say it, nonetheless -- clearly there is a distinction between legitimate advocacy and advocacy that would in any way transgress this

section in the sense that it is advocacy that is, or ought to have been, known to be false or misleading.

Thirdly, I have confidence that the courts, in interpreting this kind of section, will take the starting point that the member has. I'll use the example of a lawyer. The starting point the member has is that when a lawyer represents a client, then the presumption is that the lawyer is acting on the instructions of that client, and the representations the lawyer makes on behalf of the client are the client's representations. And hence, if such a representation was shown to be false or misleading, then I assume the court would visit that upon the client -- unless the client were prepared to bring forward evidence that in some ways those representations had not been so made.

So I think the court can well enforce this without in any way breaching the solicitor-client privilege. I think the court will look upon lawyers . . . . The court will be even more protective than . . . . Well, it will be as protective as any institution in society -- let me put it that way -- of the solicitor-client privilege. They will interpret this

section in a way that won't abridge the solicitor-client privilege. The simple way to do that, it seems to me, is that the court will assume that the statements made by lawyers on behalf of their clients are reflective of the instructions that were given. They will therefore visit consequences upon the client unless there is some external evidence or evidence the client chooses to bring -- which would be the client's choice, not the lawyer breaching any solicitor-client privilege -- that in fact the lawyer was acting outside those instructions and was, independently, misleading or in some way leading false information.

So I have faith the courts will be respectful of the relationship. I do at the end of the day believe that it's important that we not allow that relationship to undermine the ability of us, as legislators, to ensure that there's appropriate sanctions for individuals who do bring forward information that they know or ought to know is false or misleading -- and that we not allow that intermediary relationship to undermine that laudable goal and overshadow the public policy purpose.

I don't think this

section does that. I think the courts will ensure it does not do that. I know there are some anxieties; there always are when one, I guess, extends the reach of provisions. But I think that in this case the public policy

[ Page 6307 ]

purpose is overwhelming. And the solutions to the problems that are imagined are ones that the courts will resolve, both because they share the values the member is seeking and because they'll be particularly protective of the solicitor-client relationship and the responsibility of lawyers to have to be protective of the confidentiality and privileges that are associated with their role in representing clients.

G. Plant: We're not here, obviously, arguing the outcome of a legal proceeding; we are having a debate which is at the level of public policy. And so we're not going to come to a determination here of how this

section will in fact be interpreted by the court. I think, at the very least, I have all the same hopes that the minister has for how the

section will be interpreted.

I want to say, about one specific thing that the minister said at the beginning of his last remarks, that I certainly share his view that no one should be allowed to dilute their own legal obligations by engaging intermediaries and essentially passing off their responsibility to their intermediaries.

What we don't want to have, and I think the minister would agree with me here, is a situation where this new tool becomes, for example, a device used by unhappy clients to take revenge on their lawyers -- a thing that would perhaps ultimately undermine the integrity of the bar. If unhappy clients want to now say, "Well, these weren't my instructions; the lawyer acted without instructions," then the lawyer is now suddenly under a cloud. Of course, that potential already exists in some contexts in the law and is already enough of a problem. Let's hope that this does not create another opportunity to develop that problem or make it worse.

Let me deal with one other specific issue. The minister may have heard this concern expressed to him. A concern that has been expressed to me is with respect to whether or not this is evenhanded in the sense that it imposes obligations or creates offences directed at people who are making claims for compensation from the corporation but doesn't impose the same obligation in respect of people like adjusters. Apart altogether from the question of whether evenhandedness should be the objective here, let me just see if I can deal with a part of that by getting the minister to come down the road with me a certain way.

The

section says: " . . . a person commits an offence . . . . " I think it is possible that "a person" -- by providing or causing someone else to provide to the corporation information that would be caught by this

section -- could in fact be a person who works for the corporation providing that information to the corporation. If that is so, then of course it would act as a welcome deterrent to any of the very rare instances that might arise where adjusters would make false statements. Does the minister think there is some substance in that reading of the section?

Hon. A. Petter: Yeah, I would agree.

Section 56 approved.

section 57.

Hon. A. Petter: I move the amendment to

section 57 that stands on the order paper in my name.

[SECTION 57, by deleting the proposed

section 44.1(1)(b)(ii) of the Insurance (Motor Vehicle Act) and substituting the following:

(ii) requiring and maintaining confidentiality of

information disclosed for the purposes of mediation,.]

Amendment approved.

section 57 as amended.

G. Plant: I take it that it is at least the intention of the government, by this provision, not to alter or remove any of the common-law principles of solicitor-client privilege.

Hon. A. Petter: Absolutely correct.

G. Plant: The provision empowers the Lieutenant-Governor-in-Council to make regulations respecting mediation, and we've already talked about the interrelationship between this and other provisions in this bill. I'm given to understand that there's a consultation process underway with respect to the design of the regulations under this provision and that the consultation process is being directed under the leadership of the Ministry of Attorney General. Is my information correct?

Hon. A. Petter: Yes, it is.

G. Plant: So the consultation process in this instance is not being driven by the corporation. Is that correct?

Hon. A. Petter: How well the member has been briefed. Yes, that's correct. There are obviously concerns that the mediation process be fair and evenhanded, and I have undertaken that that process will be coordinated through the Attorney General's department. It will be a process that ensures that what regulations are necessary are ones that reflect the desire of all parties, including the corporation, to have an effective mediation process. By implication, that means one that is seen to be serving the interests of all parties.

Section 57 as amended approved.

section 58.

Hon. A. Petter: I move the amendment standing in my name on the order paper with respect to

section 58.

[SECTION 58, in the proposed

section 45(2)(

y) of the Insurance (Motor Vehicle) Act, by adding "or trailer" after "motor vehicle".]

Amendment approved.

Section 58 as amended approved.

Section 59 approved.

section 60.

Hon. A. Petter: I move the amendments that are in my name on the order paper with respect to

section 60.

[3:45]

G. Plant: I wonder if I might impose on you, hon. Chair, to consider proceeding through

section 60 of this bill, including the amendments, by using the numbers for the new sections that are being created by it, so that we would debate first

section 52 and the amendments to it, and then

section 53 and the amendments to it. I'd be delighted to proceed on that basis if that's acceptable to others.

[ Page 6308 ]

The Chair: Okay, and the Chair will approve that process.

Hon. A. Petter: I'm sorry, this is a new procedure for me, so I'm being challenged here as the afternoon wears on. I'll take guidance from the Chair. I can either move, as I did, the amendment to

section 60 and have the Chair then deal with that as we reach the various sections, or I can move the amendment with respect to

section 60 that applies to the new

section 52. Is that okay? I'll leave it with the Chair to decide which I'm moving.

The Chair: Thank you, minister. In view of the fact that . . . . We will deal with each amendment separately.

Hon. A. Petter: I move the amendment standing in my name on the order paper with respect to

section 60 and in relation to the amended

section 52.

[SECTION 60,

(

a) in the proposed

section 52 of the Insurance (Motor Vehicle) Act, by deleting the

definitions of "gross income" and "net income" and substituting the following:

"net income loss", in relation to a person who suffered loss of income as a result of an accident is, for any period,

(

a) if the person is a person referred to in

section 2(1) of the Income Tax Act, the gross income that the person lost in that period less the amount that would have been payable on that gross income for the following:

(

i) income tax under the Income Tax Act, as that Act read on December 31 of the calendar year before the calendar year in respect of which the net income loss is to be determined, calculated in accordance with the regulations and with reference to prescribed deductions and tax credits;

(ii) income tax under the Income Tax Act (Canada) as that Act read on December 31 of the calendar year before the calendar year in respect of which the net income loss is to be determined, calculated in accordance with the regulations under, and with reference to deductions and tax credits prescribed under, this Act;

(iii) premiums under the Employment Insurance Act (Canada), as that Act read on December 31 of the calendar year before the calendar year in respect of which the net income loss is to be determined, or

(

b) for any other person, the gross income that the person lost in that period less the following amounts calculated in accordance with the regulations under this Act:

(

i) the amount that would have been payable as taxes on that gross income according to the tax laws in the jurisdiction in which the person is liable to pay tax on income, as those laws read on December 31 of the calendar year before the calendar year in respect of which the net income loss is to be determined, calculated with reference to deductions and tax credits prescribed under this Act;

(ii) the premiums or other amounts, if any, that would have been payable in respect of that gross income according to the laws in the jurisdiction in which the person is liable to pay tax on income, as those laws read on December 31 of the calendar year before the calendar year in respect of which the net income loss is to be determined, for a purpose similar or equivalent to that of the Employment Insurance Act (Canada).]

On the amendment.

G. Plant: Perhaps the minister could explain briefly what the intention is of these amendments.

Hon. A. Petter: Well, there are essentially two things happening here. First of all, there was a concern raised during the consultation process that it be the courts who define the concept of gross income, so the definition of "gross income" has been withdrawn. I have no difficulty with that concern and responding to it.

The other is that then we're left with the definition of "net income loss." In respect of net income loss, the purpose of the amendment is to ensure that we capture not only people within the province but people who come into the province from outside. That's really what the changes here are trying to incorporate.

Amendment approved.

section 60,

section 52 as amended.

Hon. A. Petter: Yes, I'll see if I can explain this. It's a rather complicated provision trying to achieve a fairly simple purpose. The goal here is to try to compensate people based on their net income, which is to say their after-tax income, to ensure that the level of compensation corresponds to what their actual loss is and doesn't compensate them for income that would have previously gone to tax, given that the award is not taxable. But then one has to decide to whom that rule is going to apply.

The intention is to apply it to those who are at the scene of the accident -- they, then, are the protected or, in this case, "designated defendants." Then one has to decide what happens to those people who are not at the scene of the accident and are not in that category, and they, presumably, would be subject to the other rules of recovery that apply in other contexts. Therefore, we are referring to those defendants who are subject to the net-income-loss principle here in the terms that the member has referred to.

Section 60,

section 52 as amended approved.

section 60,

section 53.

Hon. A. Petter: On the advice of the Clerks, what I'm going to do is move, with respect to

section 53, that the words "the date that this Act receives First Reading in the Legislative Assembly" be replaced with the date, "June 17, 1997" -- for the sake of clarity for those who read the act, so they don't have to go back and research the statute books.

Amendment approved.

Section 60,

section 53 as amended approved.

section 60,

section 54.

[ Page 6309 ]

Hon. A. Petter: With respect to

section 54, I move the amendment standing in my name on the order paper.

[SECTION 60

(

b) in the proposed

section 54, by deleting "that the person would have earned in that period had the accident not occurred." and substituting "loss that the person suffered in that period as a result of the accident.".]

Amendment approved.

Section 60,

section 54 as amended approved.

section 60,

section 55.

Hon. A. Petter: On

section 55, I move the amendment standing in my name on the order paper.

[SECTION 60

(

c) in the proposed

section 55,

(

i) by deleting subsections (2) and (3),

(ii) by renumbering subsections (4) and (5) as subsections (2) and (3) respectively, and

(iii) in subsection (2) by deleting "Despite subsections (1) to (3)," and substituting "Despite subsection (1),".]

Amendment approved.

section 60,

section 55 as amended.

G. Plant: There are a couple of points here that I want to mention. First, there's some confusion out there in the world about the difference between periodic payments and structured settlements. I think that the universe of periodic payments is quite large. It could be a universe quite different from structured settlements, as that term is usually used. I think there was some concern here that the corporation and the courts not have new or expanded powers in the area of periodic payments but rather that this

section be a device used to enhance the use of structured settlements.

I wonder if I could have the minister's assistance in confirming for me that the intention of this provision, as amended, is really to create rules around what are conventionally known as structured settlements, rather than to create a whole category of new rules for periodic payments?

Hon. A. Petter: Let me briefly say two things about that. First of all, the answer is yes, it's our expectation that the courts will view this as they have in Ontario in the Wilson v. Martinello case: as periodic payments in the form of a structured settlement. That is our expectation.

The other issue sort of came out of the member's second reading comments, which I obviously listened to very closely. I agree with the member's comment that structured settlements work best when they are agreed to.

So while this provision is here, and of necessity while it provides the authority to impose such settlements in certain circumstances, or triggers them in certain circumstances, it's certainly my hope that we've crafted the legislation in a way that will encourage the parties -- in anticipation of a decision by the court or, perhaps, in the face of a provisional decision by the court -- to go away and actually resolve the matters themselves. I think that's the way in which these settlements will work best for all.

The experience in Ontario -- and I'd be happy to share an

article with the member that corroborates this -- seems to be that the

section is working best because it isn't being used much in the courts. Through application, it's being used much in terms of its influence in encouraging parties to effect structured settlements. So the short answer is yes, I expect if and when the courts do apply this, it will be in the form of a structure, but the hope is that this

section will do the most good in encouraging parties to themselves enter into structures.

G. Plant: That answer is helpful, and it leads me to the second issue. As part of the reason for my explaining that structured settlements work best when they are agreed to, I think it is also a point that structured settlements work best when they are in the best interests of the plaintiffs. If I can put it this way, if I had written this

section now, I would probably have put into it somewhere language which ensured that if in fact the court was to exercise that power, it would only do so in circumstances where it was in the best interests of the plaintiff. It may be, again, that that's there by negative implication. I haven't read what will become section (1)(b)(ii) properly. If that's so, then the minister will correct my reading, or state his view that in fact it is important that these things only happen when they're in the best interests of the plaintiff.

Hon. A. Petter: I absolutely agree that the best interests of the plaintiff is an overriding, indeed a paramount, consideration in applying this section. In fact, I believe it's already well reflected in the section. In paragraph (1)(a), for example, the award is only to be made where the court considers it to be in the best interests of the plaintiff. In (1)(

b) the award is only made in circumstances which the plaintiff triggers, and even then, only if it is not contrary to the best interests of the plaintiff. I think the member's concerns are not only implicitly but pretty well explicitly dealt with.

Section 60,

section 55 as amended approved.

section 60,

section 56.

Hon. A. Petter: I move the amendment standing in my name on the order paper with respect to

section 56.

[SECTION 60

(

d) in the proposed

section 56,

(

i) in subsection (1) by deleting "or earning capacity",

(ii) in subsection (2)(

a) by deleting "that was lost" and substituting "loss that the plaintiff suffered in that period", and

(iii) in subsection (2)(

b) by deleting subparagraph (

i) and substituting the following:

(

i) are liable, in accordance with the Negligence Act, for that portion of the difference between

(

A) the net income loss that the plaintiff suffered in that period as a result of the accident, and

(

B) the gross income that the plaintiff would have earned in that period had the accident not occurred

that is proportionate to the degree to which those defendants are determined to be at fault for the loss of income, and

(iv) by deleting subsection (3).]

Amendment approved.

Section 60,

section 56 as amended approved.

Section 61 approved.

section 62.

Hon. A. Petter: I notice that in this section, again there is reference to the date on which the act receives first reading. I would simply amend that wherever that appears, it be replaced with that date, "June 17, 1997."

[ Page 6310 ]

Amendment approved.

Section 62 as amended approved.

Title approved.

Hon. A. Petter: I move the committee rise and report the bill complete with amendments.

Motion approved.

The House resumed; the Speaker in the chair.

Bill 41, Traffic Safety Statutes Amendment Act, 1997, reported complete with amendments.

The Speaker: When shall the bill be read a third time?

Hon. A. Petter: With leave now, hon. Speaker.

Leave granted.

Bill 41, Traffic Safety Statutes Amendment Act, 1997, read a third time and passed.

[4:00]

Hon. J. MacPhail: Hon. Speaker, I call third reading of Bill 28.

HEALTH AUTHORITIES

AMENDMENT ACT, 1997

Bill 28, Health Authorities Amendment Act, 1997, read a third time and passed on division.

Hon. J. MacPhail: I call Committee of the Whole to debate Bill 37.

TOBACCO DAMAGES RECOVERY ACT

The House in committee on Bill 37; J. Doyle in the chair.

section 1.

Hon. J. MacPhail: I move the amendment standing in my name on the order paper.

[SECTION 1, in the definition of "tobacco related wrong" by deleting "the exposure of one or more persons to a tobacco product that results in".]

Amendment approved.

section 1 as amended.

M. de Jong: Just with respect to the term "tobacco related wrong," have we created a new statutory tort here? Is that what the section, in effect, does?

Hon. J. MacPhail: This is a tort. This is describing a tort, and it describes when an action can be brought against a tobacco company.

M. de Jong: Do I understand, then, that the right of action exists only insofar as it can be brought within the parameters of this statute?

Hon. J. MacPhail: Yes. I would just begin the debate, if I could, recognizing to the House that I am not a lawyer, so I won't be able to engage in legal discussion. I am well aware that the tobacco companies themselves will be interested in this debate, too. So I just want to make it clear at the beginning that I am not a lawyer.

I would like to say that if this is the act under which a person proceeds to court to sue the tobacco company, this is the definition that applies. It does not preclude people from suing tobacco companies under other acts -- or under common law, for instance.

Section 1 as amended approved.

section 2.

S. Hawkins: In

section 2, reference is made to a minister's certificate, and the

section says that the minister's certificate will be conclusive evidence of past health care costs. I wonder if the minister can tell us how this certificate will be assessed.

Hon. J. MacPhail: How we proceed to do a certificate is actually more explicit in subsection (2). If I could just use that to describe how the certificate will come about, it's that the certificate, first of all, on evidence of past costs already incurred . . . . That actually has to be conclusive. However, if we're determining a certificate that may describe future costs, that is evidence that can be rebuttable in court.

S. Hawkins: Who will have input in respect of deciding what the total cost of the minister's certificate will be?

Hon. J. MacPhail: This actually is computer-based evidence obtained from the Medical Services Plan, which deals with the question of allowing this evidence to be admissible in court and not to be precluded by the hearsay rule.

S. Hawkins: The computerized information, I can see, would give us the past health care cost, because that could be substantiated in some regards. But who will have input into the future health care benefits for this minister's certificate?

Hon. J. MacPhail: Actually, the determination of future health care costs is different and is more difficult -- and probably will have to be determined in the courts by the presentation of evidence that can be rebutted, as well.

S. Hawkins: The minister is probably well aware that patients who have smoke-related diseases may very well have illness caused by other factors, such as drinking or illicit drug use or those kinds of things. I'm wondering to what extent people or patients who sue under this act will be assessed differently from those that just smoke.

Hon. J. MacPhail: The certificate will only relate to tobacco use.

S. Hawkins: To what extent must someone have to be exposed, then, to a tobacco product for an impairment to their health to have occurred?

[ Page 6311 ]

Hon. J. MacPhail: Actually, the point the member makes probably refers to the whole evidence needed to prove the case. That will be what the courts will determine. The certificate does not deal with that question; it deals only with the health care costs that have been determined.

M. de Jong: I think that's where some of the confusion lies here, because the minister indicated during the context of this conversation relating to the certificate that that was something that would be decided by the court. My understanding, my reading of the act, is that that is not the case; that in order to proceed with an action under this statute, you would obtain a minister's certificate, which would in effect quantify the part of the claim relating to health care costs. You would obtain that first, and it would then be presented in court as outright evidence, as the

section indicates here, of the portion of the claim relating to health care costs. Do I understand the process correctly?

Hon. J. MacPhail: That is it for past health care costs. We have distinguished future health care costs, which is distinguishable between (2)(

a) and (2)(b).

Section 2(2)(

a) and 2(2)(

b) are dealing with different matters.

M. de Jong: I see where the minister has made the distinction. It's certainly easier to deal with the question of past costs. But is she saying, then, that a person would commence their action, and they would have a minister's certificate relating to past health care costs and wouldn't have a minister's certificate for future health care costs until the conclusion of the action?

Hon. J. MacPhail: Yeah, I'll just say this again: the past health care costs are presented as conclusive evidence. The future health care cost certificates can be rebutted.

M. de Jong: I understand that, insofar as quantifying the claim and the ability of the defendant to respond to what the certificates say. But from that answer, it seems to me that the plaintiff would go to court with two certificates. Is that correct?

Hon. J. MacPhail: That could be one option. They could come with a certificate defined in two different parts, or one certificate could come at the beginning and another could come later in the proceedings. The future health care costs could come later in the proceedings.

M. de Jong: But it is a minister's certificate. It is the ministry that issues the certificate, and it is not dependent upon the proceedings moving forward to a certain stage. Is that correct?

Hon. J. MacPhail: Yes.

M. de Jong: I don't want to belabour it, but it's a fascinating notion of how to quantify a claim in a legal action, particularly with respect to future costs. Does the minister agree that insofar as determining that quantification, it is far from an exacting science when we consider all of the potential intervening forces? The minister freely acknowledges that she's not a lawyer. I'm not a doctor, so I can only imagine what some of the congenital issues might be that could complicate the health of someone who also smokes.

When we talk about conclusive evidence of past health care costs, there may be a suspicion that if I smoke and I run into health care difficulties, what the ministry will do is run off my chart, and anything that's ever been charged to me in the past relating to health care is going to come up as a health care cost relating to my smoking. Surely that is not the intention. My point to the minister, which I think she'll agree with, is that it's far from an exacting science or an exacting process that is laid out in

section 2.

[4:15]

Hon. J. MacPhail: Tobacco-related illness will be determined through medicine, through diagnoses in the past. But I do accept what the member says about cautionary notes in terms of determining future health care costs.

M. de Jong: I took the minister's point about the conclusiveness of the various certificates. I don't know if she was considering the impact of subsection (3) when she gave that answer, which speaks of the conclusiveness of evidence for a ministerial certificate dealing with future health care costs after there has been a determination of health care benefits. At some point, it seems that a certificate dealing with future health care costs becomes conclusive evidence. Apparently that happens "after there has been a determination of health care benefits that could be reasonably expected." When would that happen?

Again, it strikes me that that is not contemplated as being a part of the judicial exercise but is something different.

Hon. J. MacPhail: I think the member is addressing the issue of future costs. That won't be a unilateral determination by the ministry; in fact, that's why it's rebuttable evidence. It could be part of the court's determination, or it could be part of an agreed upon settlement in terms of that particular issue. There are various ways it could come before.

M. de Jong: Actually, I don't think that answer helps. These certificates, as I understand it, are designed to be submitted as evidence of costs in assisting the court, once there has been a finding of liability -- if there is -- in quantifying how much money is going to be paid to the plaintiff and ultimately back to the government. So you come with a certificate that on the one hand addresses past health care costs -- and we've talked about that -- and within the same certificate or in a separate certificate, there is an assessment of future health care costs.

But both, it seems to me, are designed to be presented to the court as conclusive evidence of something. That's the word in subsection (3): "conclusive evidence." Non-rebuttable. So the answer the minister gave doesn't help me in understanding how that will operate.

Hon. J. MacPhail: I'm sorry, I have explained it as best I could. I said the first one is conclusive. The second one, determining future health care costs, can be arrived at under various methods. One could be that the court determines the nature of it. In other words, the certificate of costs for future health care costs is an item that has to be agreed upon or ruled upon, either in the courts or through settlement. Once it's been ruled upon or agreed upon, then it becomes conclusive evidence.

M. de Jong: I'll put the question this way to the minister: what is to prevent a situation from arising where the ministry, after conducting what it believes is a reasonable determination of future health care costs, issues a certificate relating to future health care costs and has it presented to the court? At that point, it seems to me that based on this legislation, it is conclusive evidence.

[ Page 6312 ]

Hon. J. MacPhail: Well, the distinction for that comes under subsection (2)(

b) in that it is evidence. The distinction is that it's not defined as conclusive evidence, and therefore, as I've said, now it's rebuttable, and the court will make a determination. There is a distinction. After the certificate has been issued . . . . I'm sorry, but it does seem fairly straightforward to me. You have a certificate of conclusive evidence on past health care costs; that's conclusive. The certificate for future health care costs is evidence, but that evidence is allowed to be rebutted. Then a determination will be made, if it is rebutted, about the nature of the certificate.

How will that determination be made? It can be made in several ways: merely by the defendant accepting it as presented, by challenging it and the courts ruling on it, or by agreement -- a negotiated certificate. Once the certificate has been concluded, it then becomes accepted as conclusive evidence.

M. de Jong: The difficulty is that there does not appear to be any requirement for any of those things to happen. I understand what the minister is saying about how it could be by consent. It could be by agreement. It could be following some court intervention. But none of those things have to happen. According to the legislation, subsection (1) deals with the cost of past care and, in sub-subsection (b), "the cost of future health care benefits." Subsection (3) of the

section deals specifically with the cost of future care. What I'm suggesting to the minister is that the ministry could issue, pursuant to

section . . . .

Hon. J. MacPhail: I hear what you're saying; I understand. Let me just try to . . . . I'm sorry I won't be able to give you any further distinction. The distinction occurs in subsection 2(2)(a). One is "conclusive evidence," and that has a legal meaning. Then in subsection (2)(

b) it is" evidence," and that has a legal meaning in that all of those tests can apply. That is the distinction. But subsection (3) says once a certificate is issued, it then is conclusive evidence. Under subsection (2)(b), it can be issued only in the context of those other challenges being available. But once it's been issued, it is then accepted.

I would be more than be happy to offer a more technical briefing to the hon. member for some examples. But I think there's no more I can say in terms of how it will operate.

M. de Jong: I don't intend to beat the thing into the ground. It is an inexact process. I suppose the record will only show that I have registered some concerns about how these certificates will be calculated, which my colleague has also alluded to, and also the drafting that has gone on. But I understand that the minister takes a different view. So be it.

Sections 2 and 3 approved.

section 4.

M. de Jong: I don't know if this is the appropriate section, because there is a

section 10 that deals specifically with contributory negligence. But since this sets out in general the right of recovery, the question that came to my mind was whether some thought had been given to including in that

section a legislated formula by which the issue of contributory negligence might be considered by a court.

Specifically, of course, someone who is smoking is adding to their own difficulties, as we all recognize. So it's a question I pose now. The minister can have me sit down and say simply that she would prefer to discuss that under

section 10. I'm happy to do that.

Hon. J. MacPhail:

Section 10 is the appropriate place. But let me offer this:

section 4 does not preclude contributory negligence as a defence.

Sections 4 and 5 approved.

section 6.

S. Hawkins: I'm just wondering what the public policy behind

section 6 is.

Hon. J. MacPhail:

Section 6 permits the government to intervene in an action brought under

section 5, which we just passed, which is the obligation to claim. This will ensure that the government will be able to present its interests in a benefits claim to the court.

S. Hawkins: Does that mean that any moneys recovered . . . that the government hopes to get that recovery of money back into government's coffers?

Hon. J. MacPhail: Yes.

S. Hawkins: Does that mean the government is going to then put that money straight back into the health care system?

Hon. J. MacPhail: Certainly legislation wouldn't in any way specify that. But you can rest assured that we're already paying these costs out of the health care system. It's an interesting debate. We're already paying the costs out. We're asking to recover the costs.

S. Hawkins: Then I am hearing the minister clearly, that any recovered costs are going straight back into the health care budget.

Section 6 approved.

section 7.

S. Hawkins:

Section 7 basically prevents an individual from discontinuing or dismissing their own action without consent from the government, even in cases, I guess, where government isn't party to the action. I'm just wondering what the public policy behind that is.

Hon. J. MacPhail: This actually relates back to

section 5, so I have to refer back to that.

Section 7 actually maintains the integrity of

section 5 -- the nature of bringing forward a claim and how that claim comes forward. This talks about how that claim is dispensed with. One party cannot end a claim that may harm the other party, including government. So there has to be agreement by government in terms of the disposal of the claim.

M. de Jong: When I looked at this section, the one thing that came to mind as sort of an analogous situation is in many of the proceedings that occur under family maintenance enforcement. What I thought of are those litigants who you might describe as being unwilling litigants. There's a whole

[ Page 6313 ]

series of reasons why the state chooses to pursue spouses for maintenance, particularly on behalf of individuals who are receiving state assistance.

But does the minister agree that there will be times when a plaintiff, for a number of legitimate reasons, will decide that they do not wish to proceed with an action? They might be health related. Does the minister think it is proper that they would be in a position where they then must seek the consent of the Crown to discontinue an action that they have no interest in pursuing? As I say, it might be for a whole host of legitimate reasons.

[4:30]

Hon. J. MacPhail: There is no compulsory requirement to bring an action forward.

Section 5 allows people to bring an action forward voluntarily. But once that action is brought forward,

section 7 determines how you maintain the integrity of the claim and the integrity of the interests of all affected, including the government. But there will be no compulsory . . . .

Interjection.

Hon. J. MacPhail: Under

section 5? No. This action refers to

section 5. This talks about, in

section 5(1) . . . .

Section 7 is maintaining the integrity of

section 5.

M. de Jong: I think the minister knows the question I'm going to ask. The bill later on makes provision for direct action. So do I understand, then, that if an action is commenced by the government directly or on behalf of someone, pursuant to one of the other provisions in the bill, the provisions of

section 7 don't apply? That seemed to be what she was saying.

Hon. J. MacPhail: A claim for direct action is a separate issue entirely.

M. de Jong: The question, then, turns back to the issue of cost, insofar as one can contemplate a litigant or plaintiff at some point coming to the decision that they don't want to proceed because (

a) the likelihood of success isn't there, and (

b) there is a strong possibility of an award of costs being brought against them as a result of an unsuccessful action. Are they then in a position where they must bring an application? Or are they even entitled to bring an application before the courts compelling the Crown to join with them in abandonment of the action? Is that what would logically follow if there was a disagreement between the Crown and the plaintiff?

Hon. J. MacPhail: I think the assurance the member needs is contained in

section

Section 7 approved.

section 8.

M. de Jong: Just a simple question: why does the government need two and a half months when everyone else gets 30 days?

Hon. J. MacPhail: The government would only be assured of the desires of the plaintiff up to 30 days. The plaintiff has the first 30 days, and we would only be notified of that at that time. So we need another 15 days in order to bring forward the appeal.

M. de Jong: Well, two things. If the government is that adamant that it wants to preserve its right of action, it can file a notice of appeal. That's not an onerous thing. But quite frankly, it's not 15 days. As I read the section, it says 45 days after the expiration of the 30-day appeal period. So it's not 15 days beyond that. I guess the question remains: why does the government need two and a half months to decide whether to appeal?

Hon. J. MacPhail: I stand corrected in terms of the 30 days. We need 45 days. But I would only offer this: there's no adverse impact on anyone because of that.

M. de Jong: Well, I suppose if you take the view that waiting for an appeal -- whether you're a plaintiff or a defendant -- doesn't carry with it some anxiety, you can say that. Quite frankly, most of the people I know that have been involved in legal action tend to worry about these things. So I'm not sure I quite agree with the minister when she says that there's no adverse effect through an appeal period. My experience has been quite the contrary for individuals.

Subsection (3) speaks to the judicial stay that automatically follows when the notice is given. That usually requires a specific order from the court if you or I were making our way through a civil action. The government here has chosen to make that automatic, dispensing with the need for that application. I'm sure there was a good reason for that.

Hon. J. MacPhail: I'll just take this opportunity to say that this legislation is on behalf of the plaintiffs. We may disagree on whether the legislation should support the tobacco industry or the plaintiffs. This legislation is clearly in support of plaintiffs, so all of these safeguards are on behalf of those who have been harmed by tobacco. As I say, that clearly is the intent of the legislation. Having said that, there could be hundreds of individual plaintiffs, and it's on the basis of us being able to properly look after the interests of hundreds of plaintiffs that an automatic stay is needed.

M. de Jong: I guess it just bears emphasizing, then, that these are special rules. They are justified on the basis, as I understand it, of the numbers of potential plaintiffs involved, and they are further justified by virtue of who the defendants are anticipated to be.

Hon. J. MacPhail: Let me say that they are not special rules in terms of stacking the odds. They are rules to deal with the complexities of the matter that will be brought forward for the court and with the number of plaintiffs that we anticipate will participate. As we said at second reading, it is to ensure that the playing field is fair -- given the complexity of the action -- and also that the matter proceeds to court in an orderly way.

Section 8 approved.

section 9.

M. de Jong: I'm going to try to do this in two parts if I can, because I think I know what the intention of the

section is. The question I'm going to ask -- or get to, I hope -- is that I have a concern that it is drafted in a way that may create a difficulty that is not anticipated. So we'll see.

When I read this

section -- I should also say that my comments will be equally applicable, I think, with respect to

[ Page 6314 ]

section 13 -- it occurs to me that this provides the Crown with an opportunity to commence an action on behalf of an individual, an insured person. I am wondering whether the government has considered the kind of scenario where the government might sue, on behalf of a child, for example, or a disabled person, a parent who it could be said has jeopardized the child's health through secondhand smoke, through some contributory negligence. I anticipate that the minister is going to say that that can't happen by virtue of the definition of "tobacco related wrong." My concern is that the way this bill, and in particular, this section, is drafted, that kind of action isn't precluded.

Hon. J. MacPhail: I personally can't see where that misinterpretation could happen. It says that as a result of a tobacco-related wrong, you are automatically required to refer back to the definition, which clearly says a manufacturer.

M. de Jong: Let me try this. If I were considering commencing an action exclusive from this statute, for damage to someone's health resulting from smoke, I would go after the manufacturer. I might also go after individuals who had been around the individual, who might have contributed to the health problems through secondhand smoke. I would name, as lawyers are wont to do, everyone I could find that might have contributed to the ill effects, the ill health, of the plaintiff.

This

section gives the government the right to commence an action on behalf of someone, and the other

section allows it to commence an action directly. Would the government be able to slide in through the back door -- something that I understand isn't the minister's intention but, it strikes me, could occur once the action has commenced?

Hon. J. MacPhail: The definition clearly restricts the government in what can be brought forward as an action. It says as a result of a "tobacco related wrong." A tobacco related-wrong is defined clearly as "a tort or breach of a common law or statutory obligation committed by a manufacturer . . . . " We then go the definition of manufacturer: " . . . a person who manufactures a tobacco product." I think we've got a pretty tight, little rein around it.

M. de Jong: I don't quarrel with that. The definition goes further, though -- " . . . committed by a manufacturer that causes or is a contributing factor in causing the exposure . . . . " I can contemplate the government commencing an action on behalf of an individual against a cigarette manufacturer, and at some point during the proceedings being confronted with evidence by the defendant, the manufacturing company, that says: "Hey, wait a minute; we're only the manufacturer. There are some other factors here, and we're going to bring some other parties into this action." That can certainly happen.

That happens all the time. So though it wouldn't be the intention of the government to do that, by virtue of having commenced the action, you've got other third parties involved.

Does the minister at least agree that is a possibility -- that that could occur, once the action between the individual and the manufacturer has begun?

[4:45]

Hon. J. MacPhail: I'm not in court, so I'm certainly not going to . . . . Perhaps the hon. member could argue that case in court. I know what the legislation says. The legislation determines what a tobacco-related wrong is, and then it determines that it's related to a manufacturer and the manufacturer has to be a manufacturer of a tobacco product.

M. de Jong: This is not really a legal point. An action is commenced under

section 9 or

section 13; it names the manufacturer as the defendant. Fine, that's the kind of action we all contemplate. The manufacturer then draws in some third parties. Maybe the question is this: is there something in this legislation that would preclude the manufacturer from naming the kinds of third parties that I've alluded to?

Hon. J. MacPhail: No.

M. de Jong: In the scenario I've described, where an action is commenced between the government on behalf of an individual and a manufacturer, that individual plaintiff could find themselves involved in a court proceeding with a member of their family on the other side named as a third party by the manufacturer. That could take place, could exist.

Hon. J. MacPhail: I'm actually getting an interesting insight into the approach tobacco companies may take in court. Certainly we have no control over that. We only have control over . . . . I mean, if the tobacco companies want to bring forward a defence such as that, it will be up to the courts to determine how that defence proceeds and whether they accept it. That's not our responsibility to determine. We have very clearly said what a manufacturer is, what a tobacco-related wrong is, but I'm sure the tobacco companies will be looking to the record to see what they may be able to do.

M. de Jong: Well, I think the minister is being unfair here. We're supporting the bill. She says she has drafted and crafted this bill in a way that is friendly to the plaintiff. What I'm suggesting is that there may be a mechanism here where it ain't going to be nearly as friendly as she thinks. She's suggesting that somehow I'm here painting a blueprint by which the defendants can . . . . Far from it.

I would have hoped, and I continue to hope, that if there is any credence to what I say, she will recognize it in the spirit that it is offered. It is not my intention, nor the intention of anyone on this side of the House, to find people in court confronted by members of their own family or those that they don't wish to sue. So I hope the minister will take the questions in the spirit they really are intended.

Section 9 approved.

section 10.

M. de Jong: I alluded to this earlier. The

section deals with the question of contributory negligence, and I wonder if any thought was given in a bill of this sort -- where this cause of action and the manner in which you proceed is laid out -- to including some manner of legislative formula by which the issue of contributory negligence will be decided by the courts. Again, it's not an exact science; I'm not even sure that's an appropriate way to go. But I wonder whether some thought was given and, if it was, why the determination was made not to include it.

Hon. J. MacPhail: The determination of contributory negligence has always been within the purview of the courts. We drafted this legislation in a very careful way -- to not have the challenge made against us that we distorted unfairly, or changed anything unfairly, to favour the plaintiff. So contributory negligence stands as being determined in the way that it has been: through the courts.

M. de Jong: I think I will only say this: I suppose an argument could be made that if evidence were led -- as I'm

[ Page 6315 ]

sure it would be -- that a particular plaintiff has smoked a pack of cigarettes a day versus a couple of cigarettes a week, there will very quickly develop a common-law rule around which the courts will render their decisions on the issue of contributory negligence. My only reason in pursuing it was that we can all, I think, contemplate the intervening factors that would be at play there. I take it that it never was a consideration.

Sections 10 to 12 inclusive approved.

section 13.

M. de Jong: In terms of the direct action, I take it that the difference between this and

section 9 is that

section 9 contemplates an action on behalf of an individual, and this would be an action by the government.

Hon. J. MacPhail: Yes.

M. de Jong: Again, in contemplating the form the action would take, there would be the name of a plaintiff. There would be Joe Smith listed as plaintiff. Is that correct?

Hon. J. MacPhail: There would be a plaintiff: Her Majesty the Queen, on behalf of the province.

M. de Jong: For example, in subsection (3), the action relates to the recovery of health care benefits. That would be with respect to an individual, presumably.

Hon. J. MacPhail: The language says "in respect of treatment of a particular disease."

M. de Jong: So that would represent, then, an action commenced by the government against a manufacturer of cigarettes, within the definition at the outset, where the government said: "We have delivered this particular treatment to a whole bunch of people who suffer from illness related to smoking, and we are a Crown in right of the province of B.C. now collecting for the cost of that treatment." Is that correct?

Hon. J. MacPhail: Yes. It exists regardless of whether any other person has recovered the damages, but it will be on the basis of a particular disease being quantified as the health care costs for the treatment of a disease.

M. de Jong: From an evidentiary point of view, would it be required for the Crown to stipulate who the recipients of the treatment were? Or are we now contemplating a different kind of certificate that would be conclusive evidence, simply by virtue of the government providing evidence that we have provided this service and the courts must therefore deem it to have been for smoking-related diseases?

Hon. J. MacPhail: Actually, I don't want to preclude discussion, but perhaps this is more appropriate under

section 14 in determining the evidence to prove

section 13.

M. de Jong: I think I'll leave it at that.

Section 13 approved.

section 14.

S. Hawkins: This

section permits the court to admit evidence that otherwise was not admissible as evidence, and I wonder what the public policy behind this

section is.

Hon. J. MacPhail: First of all, I'll describe what this clause does. It allows the court to establish causation and to quantify damages for tobacco-related damages on an aggregate basis, as opposed to an individual basis, through the use of statistical evidence or epidemiological information. The provision would include information that was derived from sampling, provided the information was compiled in accordance with accepted statistical standards.

The reason for this is that in the past, court cases have been rejected on the basis of technicalities, in that a particular wrong had to be proved by attaching it to one particular brand-name product. My understanding is that you would have to show that this brand of cigarettes solely caused this illness in order to prove that that company was liable. The public policy here is that tobacco products as a group statistically cause illness and death. That's what this evidence allows.

M. de Jong: Just to get a better handle again on the issue of quantification of the government's claim in an action commenced under

section 13, how would that work? Would the Crown say . . . ? I think we went over this, so I think the minister knows where I'm going with it. How would that work?

Hon. J. MacPhail: My understanding of how it will work is that the evidence would be presented about tobacco-related illness on the basis that this illness -- lung cancer, heart disease, stroke -- is caused by the use of tobacco. Then, we would still . . . . I mean, the proof of the linkage still has to be brought forward; proof still has to be entered into court to show that the use of tobacco causes lung cancer -- and I use that only as an example. We would also have to then prove, through the use of statistical evidence, how much of that illness has occurred in British Columbia, but it would not be on an individual basis.

M. de Jong: But doesn't the Crown have to go further, having established those two links, and then provide evidence of the cost associated with the delivery of treating disease of that sort and some evidence . . . ? I mean, I don't think it's simply a question then of saying, "Well, there's a treatment associated with lung ailments," pushing a button and spitting out what the government spent over the past year or the past ten or 15 years on treating that kind of ailment. Surely, there is some requirement to specify how many of the patients so treated suffered their ailments as a result of smoking. Does the minister understand what I'm getting at in terms of the quantification issue again?

Hon. J. MacPhail: Yes. That's why it says: "For the purposes of establishing causation and quantifying damages . . . . " That is required on a statistical basis.

M. de Jong: So we've established -- in this mythical case that we're talking about -- that smoking is bad, it causes certain kinds of ailments, the court is satisfied of that, and it's satisfied that the Crown has spent money on health care benefits to treat that ailment. Is the minister saying, then, that the only other evidence that the Crown would have to deliver is that, on a statistical, population, demographic basis, it is reasonable to expect that we would have spent X number of dollars on treating this particular illness?

Hon. J. MacPhail: Yes, it will be statistical evidence, but we'll put the evidence forward, and it can be probed and challenged and refuted.

[ Page 6316 ]

[5:00]

Section 14 approved.

section 15.

Hon. J. MacPhail: I move the amendment standing in my name in Orders of the Day .

[SECTION 15,

(

a) by deleting "on or before December 31, 1998" and substituting "within 2 years after the coming into force of this section", and

(

b) by renumbering the

section as

section 15(1) and by adding the following subsection:

(2) Any action for damages alleged to have been caused by a tobacco related wrong is revived if the action was dismissed before the coming into force of this

section merely because it was held by a court to be barred or extinguished by the Limitation Act.]

Amendment approved.

section 15 as amended.

M. de Jong: I must confess that I didn't read the amendment. I presume it hasn't changed the intent of the section.

Hon. J. MacPhail: No, and I'll just make clear what the amendment is.