Fourth Session, 41st Parliament

(2019) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Thursday, February 14, 2019

Afternoon Sitting

Issue No. 199

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Routine Business

Introductions by Members

Orders of the Day

Second Reading of Bills

Bill 2 — Protection of Public Participation Act (continued)

Hon. D. Eby

M. Lee

A. Olsen

S. Furstenau

Hon. D. Donaldson

Bill 3 — Municipal Affairs and Housing Statutes Amendment Act, 2019

Hon. S. Robinson

L. Throness

Hon. S. Robinson

THURSDAY, FEBRUARY 14, 2019

The House met at 1:33 p.m.

[Mr. Speaker in the chair.]

Routine Business

Introductions by Members

Hon. D. Eby: Just a brief, happy announcement from the Eby family, for the House.

We’re expecting our second child. I thought I’d share that with my

colleagues here. It’s very happy news for me, for Cailey and for Ezra. He’s

going to be a big brother. We’re all pretty excited on Valentine’s Day about

that.

Mr. Speaker: Congratulations.

Orders of the Day

Hon. M. Farnworth: I call continued second reading debate on Bill 2, Protection of Public

Participation Act.

Second Reading of Bills

BILL 2 — PROTECTION OF PUBLIC

PARTICIPATION ACT

(continued)

Hon. D. Eby: Just before the break, I was talking about a Supreme Court of

Canada decision where the court was taking the sharp edges off the

traditional tort of defamation, the cause of action, the ability to

bring something to court. It was in relation to Rafe Mair — comments he

had made as an opinion columnist on the radio — and the court carving

out an exception for opinion columnists.

Another really important case where the court kind of articulated

this new approach to defamation is a case called Grant v. Torstar

Corp. — Torstar Corp., at the time, the owner of the

Toronto Star . It was in relation to a newspaper

article

that was published in that paper. The court, instead of an opinion

piece, a year later was now grappling with a news report.

[1:35 p.m.]

In the first part of my speech, I talked about how journalists are

often subject to defamation threats and actions, and they’re less

successful than other actors when they’re sued for defamation. The court

was trying to deal with this, trying to reconcile the Charter values of

free expression with the tort of defamation, which was not set up to

protect free expression. It was, in fact, set up, in my opinion, to

repress free expression, to protect people with the ability to bring

court actions. The court recognizes this to some degree in this decision

when they take, as I say, the rough edges off it.

The background on this one is that Grant and his company owned a

piece of land. There was a proposed private golf course that they wanted

to do, and it bordered on Grant’s lakefront estate. A Toronto

Star reporter went out and, of course, heard the opinions of

local residents. As you would expect about something like this, they

were critical of the environmental impact of the development. They were

suspicious that Mr. Grant was working behind the scenes with politicians

to exert political influence to get the thing approved.

The offensive speech, to the plaintiff, was that the

article

quoted a neighbour who said: “Everyone thinks it’s a done deal,” because

of Grant’s influence, that he was improperly influencing a process of

review of this golf course proposal. The reporter who got this quote

from the neighbour reported on these concerns about improper influence

and tried to contact Grant for comment about this. Grant chose not to

provide comment, and the

article was published with these concerns in

it.

Mr. Grant responded to the

article by suing the Toronto

Star for defamatory speech. One of the defences that was used

by the reporter, by the Toronto Star , was the defence of truth

and the defence of fair comment. The issue was, obviously, that it was

quite difficult to prove truth around this. In terms of fair comment,

it’s a restricted defence. The jury rejected those defences.

The journalist at trial tried to say that reporters — when they go

to someone for comment, the person chooses not to comment, and they have

these allegations — should have the ability to report on that kind of

thing without being sued for defamation.

The court has got to grapple with this, because at trial, under

the traditional defamation action, this reporter definitely defamed Mr.

Grant. He had no evidence that Mr. Grant had improperly influenced,

other than the neighbour’s suspicions. He reported this in the paper, it

was published, and it made people think less of Mr. Grant. It satisfied

all the elements of the tort, but at the end of the day, the reporter

says: “Look, these allegations were being made. I had an obligation to

report it. I don’t feel one way or another about Mr. Grant. It was just

something that I needed to do. Just because he doesn’t talk, it doesn’t

mean I shouldn’t be able to do that.”

The court is trying to figure out: “Well, what are we supposed to

do here? The plaintiff made out all the elements of the tort, but maybe

the reporter has a point here. Maybe the Toronto Star has a

point here.” That is actually what they conclude, in dismissing the case

and saying: “No, there are no damages due here, and Torstar Corp.

shouldn’t have to pay Mr. Grant any money.” The majority of the court

says: “We want to modify this traditional law of defamation to make an

exception for reporters. We want to provide greater protection for

communications on matters of public interest.”

In this bill, when I start to go through it, you’ll see that it

talks about matters of public interest. So 2009 is when the court first

starts to talk about matters of public interest. There have been a bunch

of cases since then, so it’s very fleshed out, and the bill incorporates

that public interest test into the bill. It doesn’t change it at

all.

The court says, with no uncertainty…. This is from the headnote:

“The current law, with respect to statements that are reliable and

important to public debate, does not give adequate weight to the

constitutional value of free expression.” So they bring in

section 2(

b) of the Charter of Rights and Freedoms, even though it shouldn’t apply.

It’s a newspaper company and a private citizen; the Charter shouldn’t

apply. It only applies to government action, but they say there are

these values — democratic governance, getting at the truth — that apply

here, so we’re going to modify it.

The court again talks about…. There are certain terms they only

see in judgments — one of them is this one — in defamation cases,

“freewheeling debate.” The court talks about this. “Freewheeling debate

on matters of public inte­rest….” It’s the court’s responsibility

to encourage that and to safeguard it. “While the law must protect

reputation,” it’s gone too far. The current level of protection is not

justifiable — that’s, again, from the headnote of the case — because it

provided absolutely no protection for statements on matters of public

interest.

[1:40 p.m.]

I talked about what the court, in the other judgment, talked about

— the rough trade of exchange in public debate and so on. The court

comes back to that idea in more detail in Grant, and they say: “Look, we

don’t want to insist that you have to have court-established certainty

in relation to matters of public interest.”

I just noticed the red light. I thought I was designated speaker

on this. I have a couple of hours.

Mr. Speaker: I understand you’re the designated speaker, so we will ignore the

red light.

Hon. D. Eby: Thank you very much.

The court says: “Look, to require someone to be like a judge and

have all the evidence and proof to a court standard in reporting on a

matter of public interest will have the effect not only of preventing

the communication of facts that a reasonable person would think reliable

but also would inhibit political discourse.” It would inhibit a reporter

from reporting what results in — what the court talked about in the

other decision — investigative stories being spiked, never reported and,

as the court noted, less offensive material coming in to fill the

space.

The public might not notice the effect of this, but the effect is

very real.

[J. Isaacs in the chair.]

The reason that I’m going into some detail on this is to provide

some context, because there is a very real objection to legislation like

the kind that we’re bringing forward — to say: “Look, the court already

has protections around defamation, around free speech and so on, so this

legislation is not necessary.” But it’s really important to understand

these cases to understand why this legislation is actually necessary, to

give effect to some of the things that the court is saying about the

tort of defamation.

Welcome, hon. Speaker, to the chair. It’s nice to see you up

there. Congratulations.

When the court looked around the world at what was happening in

other common-law democracies about defamation law, the court said:

“Look, we see what’s happening in other places. They’re changing their

laws to allow more free expression and to restrict the use of the

defamation tort. That favours us replacing the current Canadian law with

a role that gives greater scope to freedom of expression while offering

adequate protection of reputation.” The court says a right to free

expression does not confer a licence to ruin someone’s

reputation.

The way that the court comes to squaring this circle is to say:

“We will create a new defence for publishers. They can escape liability

if they can establish that they acted responsibly in publishing

something, in attempting to verify the information, to go to the person

— ‘Do you have a comment on this? Do you have some information to share

with our readers? We have this allegation. What do you say about it?’ —

and giving them a chance to respond.”

A publisher that gives someone a chance to respond and publishes

responsibly could have a defence to a traditional defamation action.

They modify the law to allow that kind of defence to go forward, which

they felt was very important to protect journalists.

Now, the defendant doesn’t just have to show that they gave a

chance to respond, but they have to show the publication was

responsible, that they were diligent in what they tried to do. It wasn’t

just like: “Oh, you know, we sent a fax, and nobody responded. We sent

an email, and nobody responded. We knocked on the door, and nobody

answered.” They have to be diligent in trying to verify the

allegations.

Also, the court needs to consider the subject matter of the

publication as a whole, that the defamatory statements can’t be

considered by themselves. They need to be considered…. Is this a

newspaper, or was this a one-time publication exclusively for the

purpose of attacking the person? Then the defendant must show that the

subject matter was one that invites public attention.

There are a number of different tests that the defendant also has

to raise, which talk about the seriousness of the allegation, the public

importance of the matter, the urgency of the matter, the status and the

liability of the source of the information, whether the plaintiff’s side

of the story was sought and accurately reported, whether the inclusion

of the defamatory statement was justifiable, whether the defamatory

statement’s public interest lay in the fact that it was made rather than

its truth, and any other relevant circumstances.

This is the point. That is all on the defendant. All the plaintiff

has to do is say: “This was published. This caused people to think less

of me, and I am entitled to damages.” Then they sit down, and then it’s

all on the defendant to prove all of these other things and prove them

on a balance of probabilities. And only by proving those things and

addressing these circumstances can the defendant defend themselves

against the lawsuit that’s been started against them. And it goes all

the way to the final decision.

[1:45 p.m.]

When you consider the fact that this went all the way to the

Supreme Court of Canada…. The Torstar media organization had to go

through three levels of court, a full trial, and prove all these things,

and all that Mr. Grant had to do was prove that somebody published

something that made him appear to be less reputable to other members of

the public. It’s very unbalanced.

It’s that lack of balance — that you can file the claim, that the

test is set up like this, that all the work has to be done by the

defendant — that leads the tort of defamation to be at particularly high

risk of being abused to stop someone from talking about something that

you would like them to stop talking about, by filing a

lawsuit.

That takes us to 2009. In Ontario, the Supreme Court of Canada

cases came down, people were talking about them, those defences started

to roll out, and people were using them in court. Yet still there was a

sense that the tort of defamation was being abused by people with means

— people who were able to threaten lawsuits to stop someone from talking

about something that they don’t like them to talk about. They’d just

threaten a lawsuit to stop them from talking about it, because all the

advantages are conferred to the plaintiff in this tort.

Ontario commissioned the Moran review of defamation law, the Moran

panel. And I’m indebted to Jeremy Shragge, a lawyer in British Columbia

who wrote a paper on this, detailing some of the background on the

Ontario Moran panel. In 2010, they released their recommendations to the

public about how we can fix this, how we can address this issue — this

imbalance between the plaintiff and the defendant and the fact that this

appears to be inhibiting free speech and appears to be preventing people

from the freewheeling rough trade of public debate about the issues that

matter.

They released their report in 2010. They had a bunch of

submissions from individuals and organizations. At the end of the day,

this panel, which was independent of the Ontario government, “was

persuaded that threats of lawsuits for speaking out on matters of public

interest, combined with a number of actual lawsuits, deter significant

numbers of people from participating in discussions on such matters.”

And they said that there was a need for Ontario “to enact legislation

against the use of legal processes that affect people’s ability or

willingness to express views or take action on matters of public

interest.”

This was in 2010 in Ontario. It’s a whole lot of water under the

bridge since 2001, when B.C. introduced its first legislation to control

the use of the law in this way. It’s ten years later. The Moran panel

said: “There are a couple of elements that we’ll look for to make sure

that a law that’s brought in to deal with this type of abuse of the law

is reined in.” They said: “We want to see that there’s an expedited

process, that things happen faster.” So if you’re sued for defamation,

you can get in front of a judge faster, you can get a decision faster,

and you don’t have to go through the whole trial to get a

decision.

We also want to see a reduction in the economic burden that these

types of lawsuits place on defendants. There’s any number of ways that

the law could do that, but that’s a factor that we would look for to see

whether or not it’s an effective law.

We also want to see economic disincentives to the filing of these

lawsuits in the first place. We want to make sure that people are really

committed to actually following through, that they’re actually injured,

that they actually have the desire to go ahead with this and that it’s

not just to stop someone from talking about something that makes the

other person feel uncomfortable in relation to something they have an

interest in, because we want to protect free speech.

The report also recommended that there be a broad scope of

protection, keeping the then recent Supreme Court of Canada decisions in

mind, which I’ve taken you through.

Now, one of the key comments of the panel that was relevant to the

2001 law that we had in B.C. is that they were pretty critical of the

2001 law, in particular that the 2001 law in B.C. required you to prove

that the person who was suing you had a bad motive, that they intended

you harm by filing the lawsuit against you. It’s a very difficult thing

to do, to prove that.

The Moran panel said that as a result of that, that law is not as

effective as it could have been. So we think that future laws should not

rely on the motive of the plaintiff, if we can avoid it. They said:

“Judging the motive of a plaintiff is likely to be difficult and often

impossible in an expedited proceeding.” The effect that the action is

likely to have on expression, on matters of public interest, should not

require the judge to read anyone’s mind and would be more readily

supported by evidence. I’m paraphrasing that last bit.

[1:50 p.m.]

They say that instead of looking to whether the person suing, this

person who is expressing themselves…. Instead of trying to figure out

whether they’re doing it for a bad purpose, why don’t we just look and

see what the effect of it is? Is it a matter of public importance? Is it

stopping this person from talking about it? Is it interfering with the

public hearing something that’s an important communication about this

matter of public interest?

They set out a proposal around their procedure for identification

and dismissal of these lawsuits at an early stage, not at the end of

trial, which was the case before this law was introduced in Ontario.

First, does the expression that is the subject of the lawsuit involve a

communication on a matter of public interest? As I said, this is

something that the Supreme Court of Canada has considered and many

courts have since they did in Grant v. Torstar in

If it’s shown to be on a matter of public interest, then

immediately the responsibility to provide proof to the court, the onus,

should shift to the plaintiff, the person who’s bringing the lawsuit.

The plaintiff should have to show on the factual record that the

plaintiff actually has a decent case. The plaintiff should have to show

that there are grounds to believe that the defendant has no

defence.

What the law should do is it should shift responsibility from the

defendant to the plaintiff, the person who’s bringing the lawsuit, which

is the way it is in most personal injury actions and torts that are

brought in front of the court, except in defamation. Defamation is one

of the only torts where you see that the defendant has all the work to

do, not the plaintiff.

Finally, if the plaintiff meets those tests, the court should

consider, in all the circumstances, whether the action is for an

insignificant harm yet has a significant impact on free

expression.

It may be that the court looks and says: “Okay, got a good case.

You’re likely to be able to prove it. The other person probably doesn’t

have a defence. But even if you’re successful, this is such an

insignificant harm that you suffered. It’s a very small case, but the

impact that you’re going to have on free expression is significant. So

even though you’ve got a case that could succeed and you’re going to get

an award of $500, we’re going to say the impact that this has on free

expression is too much. We’re going to say that person should be able to

make the remarks that they’re making for the purposes of furthering

public discussion and debate.”

The Moran panel is pretty clear. They trust judges to ensure that

truly harmful or lawless behaviour is not encouraged in the name of

public participation. The courts have made very clear that there is a

whole category of lawless behaviour or harmful behaviour that is not

protected in any defamation defence. I’ll go into those in some detail

in terms of the different kinds of harmful communications as I talk

about the bill.

The Moran panel also said: “Look, we need to make this less costly

for people who are being sued.” Short deadlines for the documents to be

served and responded to, an expedited hearing…. This is important

because you’re going to see it again in the bill. You’re going to see

all of this. The reason why I’m talking about the Moran panel is because

this bill is based on what happened in Ontario — Ontario’s bill; I’ll go

into why we did that — and Ontario’s bill was based on the Moran

panel.

Short deadlines for replies, expedited hearing and the suspension

of steps in the underlying action. I’ll go into some detail on that in

the bill. But what it does is it puts a lot of pressure on someone,

because if they want to stop someone from speaking, they have to suspend

the steps that they’re taking in the other process that might be the

subject of the person’s expression. It sounds complicated, but I’m going

to go into it in a second and explain a little bit.

There should also be discretion for the courts to award costs to

successful defendants. The court should be able to dismiss with

prejudice. There should be some way for the court to recognize if, in

fact, it’s obvious that someone brought a lawsuit for a bad purpose.

There should be some way for the court to support the defendant, to

recognize that the defendant was unfairly brought to court, and there

should be damages available.

The court shouldn’t just be able to say: “This was a really bad

lawsuit that never should have been brought. But actually, we think this

guy who you sued should get a bunch of money from you because the

lawsuit you’ve brought was so bad, was so poor, was motivated by such

malice that we’re actually going to recognize that by making you pay

this individual beyond just their costs, but additional costs as

well.”

What was happening in B.C. at that time? Well, actually, most of

what happened in B.C. was before 2010 when Ontario was doing all of

that. In 2001, there was an anti-SLAPP bill introduced in the last

months of the then NDP government by Attorney General Andrew Petter He

provided quite a detailed set of reasons for bringing this

groundbreaking legislation forward. I believe it was the first

anti-SLAPP bill in Canada when he brought it forward at the time. He

talked about the reasons why they brought it forward.

[1:55 p.m.]

History repeats itself. The Union of B.C. Municipalities had asked

for this kind of legislation to be in place. Again, the UBCM has asked

for this legislation to be in place — one of the reasons why it’s in

front of the House today.

There was concern. He went through concern about the fact that it

wasn’t necessarily the number of cases that are brought but that many

cases that don’t even get to court aren’t even filed. Simply a threat of

defamation action is enough to stop people from speaking, a concern that

motivated the legislation in 2001, and it motivates it again here today

in this place.

He noted that in other jurisdictions, they were moving…. At the

time, 13 U.S. states had such legislation. The number is higher now.

They had moved to address this issue in their jurisdictions.

He said they believe, believe it or not, that people should be

able to stand up and speak on an issue that concerns them and to

advocate in favour of a public position on issues without being the

subject of litigation, without having to go and consult lawyers — or, if

indeed they have to consult lawyers, without having to incur the full

cost that litigation can impose upon them because there is no protection

for their participation.

It sounds very similar to the concerns of the Supreme Court of

Canada many years later and also Ontario’s concerns that resulted in the

Moran panel and the recommendations there.

He talked about the concern related to balance of protecting

reputation and protecting free speech, the same balance that we’re

trying to strike with this legislation.

He also talked about the ability to get a quick dismissal of a

claim and to seek costs if someone brings a lawsuit like this against

you — that it shouldn’t be a huge financial burden that drags for years.

There should be a expedited process.

But there is something that is different — a significant

difference. That is something I addressed a little bit already, which is

that the 2001 bill required the court to reach into the mind of the

person who was bringing the lawsuit to find out if they were bringing

the lawsuit for an improper purpose. It had to show that “a principal

purpose for which the proceeding or claim was brought or maintained is

an improper purpose.” That’s a very difficult thing to prove, and it was

certainly acknowledged at the time by now Dr. Petter that it is very

difficult to prove motive.

It is something that ultimately has been abandoned in other

jurisdictions going forward to make sure that their legislation is

effective. But as I say, at the time, this was quite groundbreaking

legislation.

The goal of the legislation in 2001 is the same as the goal of the

legislation now. Dr. Petter said: “It’s about time that people in B.C.

have some legislative assurance and a tool that says to them: ‘Yes, if

you stand up, if you are one of those in our society who is prepared to

stand up and say controversial things and take on the issues, the

Legislature is going to protect you from others who might want to

prevent you from doing that.’” That remains totally

unchanged.

Now, at the time, of course, in the opposition, Geoff Plant, then

the critic for the Attorney General — later to be the Attorney General

who actually repealed the legislation — objected to a number of points

related to legislation. His main point…. He had two.

One is, paraphrasing, that there is no particular issue. You

haven’t really proven that there’s an issue that needs to be addressed,

and even if there is an issue — if I assume that you’re right and that

there is an issue — the court has a bunch of mechanisms in place. Even

in 2001, even before Grant v. Torstar , even before the Rafe

Mair case, he believed that the court had a number of mechanisms to deal

with these kinds of things — namely, rule 18A and other

mechanisms.

Rather than paraphrase, to be fair to Mr. Plant, I’ll read a

little bit from his speech. “Our rights and freedoms are of no value if

a person is denied or delayed access to a court of competent

jurisdiction to vindicate them. Yet that’s what this bill does. It does

it deliberately. It deliberately seeks out to deny and delay access to

the courts. It sends a message to those whose rights are infringed:

‘Don’t bother with a lawsuit. The courts are not there to help you.’ Any

bill presented to any legislature should satisfy a series of tests. The

first is this: is there some pressing and urgent problem that needs to

be addressed?”

Later on he says, and he goes through a number of examples: “There

is no problem.” Among other things, he cites that there is only one case

that he could find that specifically mentioned strategic litigation

against public participation.

[2:00 p.m.]

He continues, to say: “Rules 18 and 18A in the court” — these are

rules of court that allow

summary power for courts to dismiss claims —

“provide the court with a

summary power to dismiss unmeritorious cases

after hearing some evidence in an application on an affidavit in an

application that can be made summarily and can be dealt with

expeditiously. It’s hard to see evidence of the problem, and secondly,

in any event, if there’s a problem, the law already contains the tools

for responding to the problem.”

There was a lively debate on the issues between Mr. Plant and Dr.

Petter, both of whom have gone on out into public life to participate on

many issues of public importance and to debate those issues. The

interesting thing is that, to some degree, both were proven

right.

Certainly, Dr. Petter was vindicated, in the sense that the court

recognized, on multiple occasions, that people’s rights of free

expression were being infringed by defamation actions, that this was a

serious problem, that this was a big problem that the court needed to

intervene in and create new processes, new defences for people,

including journalists and commentators, to prevent their free expression

from being interfered with. He was vindicated in that sense. I would say

that Mr. Plant was vindicated in the sense that the court itself — in

the absence of legislative action, because this bill was ultimately

repealed — started to carve away at the defamation rules to allow free

expression to continue.

Where, I think, the two parted company and it is still unresolved

— where I agree with Dr. Petter’s approach and not Mr. Plant’s approach

— is whether or not there’s a need for a process mechanism, a way to

have the court be able to hear, at a very early stage, whether or not

someone’s free expression is being interfered with and to deal it, as

opposed to at the end of the trial, after the defendant has been put

through all these hoops of having to prove all these different things,

and the plaintiff has only had to say: “Look, someone made me look bad

in the eyes of other people.”

That’s where the big departure is between the two, still today. As

I say, both were vindicated on some points. But where we obviously —

because we brought this bill forward — still agree with Dr. Petter is

that there is a need for us to have a process in place for early

resolution of this to prevent undue interference with freedom of speech,

entirely consistent with the Supreme Court of Canada’s decisions and

their dicta about

section 2(b), the things that they’ve said in their

cases about

section 2(b), the free expression provisions — and actually

supportive of providing the courts with the opportunity to do

this.

In 2001, the anti-SLAPP bill in B.C. was repealed by Mr. Plant,

who was then the Attorney General. The only comments I could find on the

record that he made about this…. I’ll read them for you so that you

understand the reasoning for repealing it. It was in a miscellaneous

statutes bill that also repealed pay equity amendments to the human

rights code and repealed a program to protect property from

redevelopment that was held for affordable housing for seniors, so it

was quite a bill.

In any event, Mr. Plant read this, in terms of explaining why the

bill repealed the then act in B.C.:

“Finally, this bill repeals the Protection of Public Participation

Act that was brought into force in April 2001. That act was created with

the idea of intending to help persons deal with unmeritorious lawsuits

brought against them. In fact, the act was too broad, and it has the

potential to cause considerable in the court system and in British

Columbia if it is misused by persons who in turn want to cause delay and

expense to plaintiffs who are entitled to bring legal proceedings in

British Columbia.

“In my view and the view of the government, the existing rules of

the Supreme Court are sufficient to protect parties from frivolous and

vexatious lawsuits and also to provide for remedies in the form of

costs, where appropriate, to be awarded in appropriate circumstances.

This bill contains a transitional clause that will protect the rights of

anyone who has made use of the Protection of Public Participation Act

during the period that it was in force.”

That’s the sum total of the remarks about why the bill was

repealed — a very brief restating of his argument that he’d made in

opposition, about why he didn’t support the bill and that the existing

rules were sufficient.

In his defence — not that I spend a lot of time defending Mr.

Plant — it was six years or seven years before the Supreme Court of

Canada issued its decisions in Grant v. Torstar and on Rafe

Mair, where the court said: “Yeah, actually, there is a serious problem

here. Yeah, actually, we do need to deal with this.” He didn’t have the

benefit of that, but still I disagree with the fact that he repealed

what was a necessary provision.

This brings us to the act. The members are shocked; I’ve finally

gotten to the act. This is really important, because it’s a short act,

right? There are not a lot of provisions in the bill, and it’s hard to

know why they’re there or what it’s about unless you know a little bit

of the background. I’ve been very pleased to have the time to be able to

go in some detail into this and assist the members in understanding why

we’re bringing this forward.

[2:05 p.m.]

The first section, the definition section, is not the most

exciting

section of the act. I’ll come back to it to talk about

administrative proceeding, because it is very broad. Also, “expression”

is defined very broadly to include non-verbal communication. The only

thing I’ll pause on in the

definitions

section is to say that there are

things that this definition will not capture or, at least, it’s not

intended to capture. It’s because the courts have been very clear about

what expression does and does not include, and it imports into it all of

the case law about expression and what expression does and does not

include.

I’ll give you some examples of what expression does and does not

include. First is expression that is beyond the pale of

section 2(

b) of

the Canadian Charter of Rights and Freedoms. An obvious example is hate

speech, as defined in

section 319(2) of the Criminal Code. The court has

been very clear that that type of speech is not captured within

section

2(

b) in

section 1 of the Charter.

An act of violence does not count as expression, which should seem

obvious to everyone, but sometimes it’s good to say it out loud, because

you never know quite what people who haven’t had the benefit of this

debate are going to say about a bill outside the Legislature. A threat

of violence is not expression. For any member who is curious, I’m happy

to provide case citations for these kinds of things to explain why

expression, while defined broadly in the bill, under the case law in

Canada is very clear about what it does and doesn’t include.

An act of violence or a threat of violence against others — not

included. Now, you’ll note that the definition of expression is not

qualified by words such as “lawful” or “appropriate expression” or “good

expression” or anything like that, because that’s exactly what we want

the court to determine. We’re setting up the procedure for the court to

determine whether the expression is in fact lawful, is in fact

appropriate, is in fact protected. It’s up to the court to determine

that. We didn’t put it in the definition because that’s exactly what we

want the court to determine, and it’s necessary for the court to

determine that.

Section 2. I talked about this a little bit, in relation to the

introduction. The act applies “in respect of proceedings commenced on or

after May 15, 2018.” In introducing the bill the first time, that bill

applied to all defamation actions that were currently

underway.

I know this will be of some concern to people who are currently

participating in defamation actions, whether willingly or unwillingly,

who may have been hopeful that this bill would apply to them. I will

note that the intention here is to provide people with notice that in

fact the rules have changed. The reason why we have the date of effect

being May 15, 2018, and not royal assent, is that we don’t want a bunch

of people running down to the court registry and filing defamation

actions to try to get them in before the date of effect.

We want to make sure that people have notice that the rules are

going to change and conduct themselves accordingly, but prior to this

bill being introduced, people made decisions about whether or not go to

court, how to conduct defences, and so on, and we didn’t want to have

undue interference with that. I wanted to provide a little bit of

background on that.

Section 3. The background of this one, which talks about qualified

privilege, sounds really technical. “If an oral or written communication

on a matter of public interest, between persons who have a direct

interest in the matter, has qualified privilege, that communication has

qualified privilege regardless of whether the communication is witnessed

or recorded by the media or other persons.”

What does that mean? It has some significance for people who may

be sued for defamation. One defence, if you’re sued for defamation, is

called qualified privilege, and that can be communication by and to

persons who share an interest in the matter being communicated. But if

somebody else hears that communication and reports on it, then you lose

that defence.

If you’re talking to some people, you have a direct interest in

the matter and you’re talking about it, you definitely have the defence

of qualified privilege. If a journalist overhears it and reports on it,

you lose the defence. This doesn’t change the rule of qualified

privilege. It doesn’t change anything related to that, but what it does

do is it allows for reporters to do what they do, which is report,

without jeopardizing somebody’s ability to raise the defence of

qualified privilege. It is not a change to the law respecting qualified

privilege generally.

[2:10 p.m.]

Section 4. This is the heart of the act. It doesn’t seem like a

whole lot. It’s two subsections, but this is the key of it. The purpose

of the act is to protect expression on matters of public

interest.

You’ll see here that it doesn’t talk at all, as the 2001 bill did,

about the need to inquire into the motivation of the person who filed

the lawsuit. The act, under this application section, allows the court

to balance the effect of the expression on the harm suffered from

plaintiff in terms of the importance of the expression.

It’s exactly what I was talking about with the Supreme Court of

Canada — how they were trying to balance that people have a right to

personal integrity under the Charter, that they have the right to their

reputation and that people also have the right to free expression. How

do we do that balancing exercise?

This application to court allows for the court to do the

balancing. It doesn’t try to do the balancing for the court. It says: is

this matter relating to public interest? Then it goes into why it may or

may not be subject to this protection.

There are two subsections, as I said.

Section 4(1) talks about

matters of speech that are of the public interest. As I said, that is

something that the Supreme Court of Canada has considered in some

detail.

Importantly, and importantly for this bill, in the pendency of the

time from when we first introduced this bill to today, the Ontario Court

of Appeal released the decision where they considered the Ontario bill.

They went through it in some detail, and they said…. They made lots of

comments about the Ontario bill, and it has a lot of relationship to our

bill, because our bill is based on the Ontario bill.

Members who are particularly interested in this would be well

advised to check out the Ontario Court of Appeal decision, 1704604

Ontario Ltd. v. Pointes Protection Association . You can guess

who was bringing the defamation action and who was alleging a SLAPP in

that confrontation, and your imaginings would probably be correct. It

was the Pointes Protection Association that was accused of defaming

1704604 Ontario Ltd.

The Ontario Court of Appeal said that public interest should be

broad. They imported the whole jurisprudence from the Supreme Court of

Canada around public interest. Potential subject matter is totally

wide-ranging. It could be politics. It could be science and the arts. It

could be the environment. It could be religion. It could be morality.

There’s not a limit to the number of topics or subjects that are matters

of public interest.

The court, though, did recognize the limit the Supreme Court put

on matters of public interest, which said that it does not extend to

matters of mere curiosity or prurient interest in which the person

concerned has a reasonable expectation of privacy. There is a limit on

what is a matter of public interest, for certain.

Section 4(2). If you make the public interest test and so on, it’s

important to recognize that 4(2) is not an alternative to trial. It’s

not a

summary judgment. It’s a judicial screening. “It’s a triage

process,” the Court of Appeal said in Ontario, “designed to eliminate

certain claims at an early stage of the process.”

It talks about, and it’s probably worth going through it, 4(2):

“If the applicant satisfies the court that the proceeding arises from an

expression referred to in subsection (1)” — that is, a matter of public

interest — “the court must make a dismissal order unless the respondent”

— that is, the person who brought the lawsuit in the first place. The

person who brought the lawsuit in the first place has to satisfy the

court that, first of all, (

a) there are grounds to believe that the

proceeding has merit: “My lawsuit is a good one.”

The second is that the defendant, or the applicant, has no valid

defence in the proceeding: “Not only is my lawsuit a good one, but this

guy’s got no defence.” Then secondly, the harm likely to have been or

that will be suffered by the respondent as a result of the expression

“is serious enough that the public interest in continuing the proceeding

outweighs the public interest in protecting that expression,” and that’s

the balancing test: “I’ve got a good case, this guy’s got no defence,

and the subject matter is not so serious and not so important that it

outweighs my right to protect my reputation.”

In all of that, you’ll note, the burden is on the person bringing

the lawsuit to prove these things. It is no longer on the defendant or

the person being sued to prove these things. That shift in the onus or

the responsibility to show that to the court is critically

important.

[2:15 p.m.]

Now, the term “grounds to believe” — what does that mean? It

should be understood as “reasonable grounds to believe,” according to

the Ontario Court of Appeal, with which we agree that that is the

intent. The plaintiff, the person who’s suing somebody else, does not

have to satisfy the court that it would win but only that there’s reason

to believe or there are grounds to believe the lawsuit has merit and

that there are also reasons to believe that the defendant has no

defence. This isn’t the case itself. You just have to show there’s a

reason to believe these things.

There’s a reason for separating out that the case has substantial

merit and that there’s no valid defence. In defamation, there’s a big

difference between proving that somebody said something about you that

lowered your reputation in the community and the defences that are

available to someone who’s being sued. There’s a big departure between

these two, so they’re separated out here in the bill as well.

For example, a defendant can say: “It’s true” or “I have the

defence of qualified privilege” or “I have the defence, through

Grant v. Torstar , in relation to responsible communication

for journalists” or “I have the defence from the Rafe Mair case, in

terms of, ‘This is my opinion on the facts, and I have a right to my

opinion and to express my opinion, and I reasonably hold that opinion.’”

In all these different defences, the person who is bringing the lawsuit

has to show that the person who is being sued has no defence and that

there’s no way to justify what they did.

I would definitely recommend to members who are particularly

interested in this a read of the Ontario Court of Appeal decision. I’ll

truncate my remarks about the case a little bit there. They go into some

detail in terms of judicial analysis of a bill that in many respects is

almost identical to British Columbia’s.

Section 5, no further steps. This is a big deal. Remember when I

talked on the Moran panel? They said: “Look, you need to make there be a

financial consequence. You need to make there be a financial

consequence, a consequence for bringing an action that will discourage

people from bringing these actions unless they’re really serious. If you

don’t have that, people are still going to file them.” A cost award for

someone who’s very wealthy is going to be a relatively minor thing, and

they’ll still bring these actions.

This

section 5 is called “No further

steps.” If you sue someone like this and they

bring an application to say, “You are interfering with my free

expression. This is matter of public importance. I want the court to

determine this under

section 4,” everything stops on other proceedings

that the expression is related to.

If you are Mr. Grant and you are making an application to put in,

using Mr. Grant as an example — he is from the Torstar case that I was

talking about earlier — a private golf course…. You have an application

for rezoning in front of the municipality, and the person was talking

about that — in this case, a reporter from the Toronto Star . If

you want to sue that person for defamation and that reporter brings an

application against you under this bill, everything stops in the

rezoning hearing until this matter is resolved.

The reason for that is we want to encourage people to resolve

these things really quickly, on both sides, so it’s a lot of motivation

to ensure it’s resolved quickly. Secondly, that it’s really serious —

that the defamation is so serious that a person says: “Yes. Heck, yes.

We’re going to put this thing on hold, and I want to sue this guy for

saying that I was improperly interfering with politicians on

this.”

It’s a test, really, for a person to make sure that it’s worth

their while to go through with this. It increases the cost to go to

court, in a way that is more than just money, to address the issues of

an inequality in resources. It’s a significant

section of the act. I

draw members’ attention to that.

Section 6. This one says: “No amendments to the pleadings unless

permitted.” It sounds very technical, but the issue is that you bring

the lawsuit, you sue the guy, and he’s successful in getting a lawsuit

dismissed under this bill. You say: “No problem. I’ll just slightly

modify my claim. I’ll bring it back in front of the court again, or I’ll

seek leave to amend my pleadings to include something different or to

include something more. Now that I’ve lost, I’ll just do it again.” Then

you’re stuck in an endless cycle of going back and back and back on

applications. It achieves the same intent as if the whole thing went to

a full trial, and it defeats the purpose of this bill.

This prevents you from going back to amend your pleadings or your

documents that you’ve filed to start the lawsuit in order to try to

avoid an order to dismiss the proceedings. You’re not allowed to do

that. That’s captured by the bill.

[2:20 p.m.]

Section 7 is costs. This creates an assumption. It allows the

court to make a determination on this. But if the court makes a

dismissal order and says, “No, this is an interference with free

expression. This is a problem, and we’re going to stop it,” the person

who asked the court to make that determination — the defendant, usually

— is entitled to costs on the application and in the proceeding, unless

the court says that the assessment is inappropriate in the circumstance.

It gives the court a safety valve if they want to not give costs to

someone for some reason, if they behaved particularly badly or something

like that.

Section 8. You’ll remember that one of the big differences between

the 2001 bill and the bill that’s in front of the House today is the

need to prove the motive of somebody who has brought the lawsuit. In

2001, you had to prove the motive that they did it for a bad purpose. In

this bill, you don’t have to prove that. You just have to prove the

impact on free expression. That’s a big difference between the two

bills.

You’ll see here that in

section 8, it talks about damages if the

respondent brought the proceeding “in bad faith or for an improper

purpose.” If you are able to prove or if the court finds that the person

sued you in bad faith or for an improper purpose, this allows the court

to give damages to the person who was sued, to say that you are entitled

to some compensation for being dragged into court for a bad purpose or

an improper purpose — again, a recommendation of the Moran panel out of

Ontario.

Section 9 talks about the procedure on an application in one of

these things. It’s in accordance with the existing Supreme Court civil

rules, subsection (1). The second is that an application for one of

these dismissals can be made at any time in the action after it’s been

started. Once it’s been made, it needs to be heard as quickly as

possible.

You’ll remember from Moran that they said these need to be heard

as quickly as possible in order to minimize the financial impact on

individuals.

Evidence must be given by affidavit. That’s a sworn document;

that’s not testimony in court. It’s a paper-based process. It still

provides the ability for people to cross-examine on affidavits, but

you’re only allowed seven hours max. There’s a restriction on that, all

in the name of getting this resolved as quickly as possible — whether

the case can go on or whether it has to stop. The court, again, is given

the discretion to extend or limit cross-examination as

necessary.

Section 10. One of the problems is: you set this up, and then

someone appeals and appeals and appeals. Then the person is in court for

years anyway, even though they’ve been successful in proving that this

was an interference with their free expression. So this

section is

simply a direction to the court that an appeal of a dismissal order

under this act must be heard as soon as practicable.

This would be something that would be used by someone in court to

say: “Look, they’re engaging in delay tactics. They don’t want to get in

court on the appeal. It needs to be heard as soon as possible.” The

court will step in and address that issue, we hope.

Section 11. It talks about a stay of administrative proceedings.

This is a further detail about…. Pardon me. You know what? I conflated

my sections. This is the

section I was telling you about that nothing

goes ahead in relation to whatever the underlying project is or issue is

that the person was speaking about. Nothing continues until this is

resolved.

The other

section I was talking about said you’re not allowed to

take any further steps in the litigation. So you can’t sue someone for

defamation. They bring an application to have it dismissed, and then you

keep going as if it didn’t happen. Everything stops in the lawsuit as

well. Everything comes to a stop once one of these applications is

filed. Then all the rules say that this needs to be dealt with as

quickly as possible to ensure fairness to the plaintiff and to ensure

fairness to the defendant — to get it resolved as quickly as

possible.

Section 12. It was not the intention of this bill to create any

other rights or remedies or interfere with them — any other rights or

remedies that might be available to people. So when Geoff Plant was

talking about rule 18 or 18A, or whether you’re talking about the

Supreme Court of Canada decisions where they might have given different

rights to defendants or plaintiffs, under defamation, this act is in

addition to those. It’s not meant to take away from any of those rights

that might be available to either the plaintiff or the

defendant.

Section 13, the Offence Act. It’s a fairly standard provision of a

lot of acts, simply to say the Offence Act doesn’t apply here. We’re not

trying to create a provincial offence.

Finally, the coming-into-force date. Now, keep in mind that

there’s already a

section that says that this is for cases filed on or

after May 15 of last year, and the act comes into force on the date of

royal assent. So it can be made use of, where appropriate, as soon as

possible. It won’t come into effect by regulation, because we believe

there is urgency in getting this legislation into place.

[2:25 p.m.]

That brings to a close my remarks on the bill — the reason why we

brought the bill; the text of the bill that’s in front of the House; and

some of the background in relation to the defamation tort, traditionally

and as it’s evolved through the Supreme Court of Canada. We’re not

trying to displace that jurisprudence or those decisions of the court,

the direction of the court. We’re attempting to provide greater effect

to it by providing a procedural remedy, where people can have this

considered by the court sooner, rather than at the end of the trial, so

they don’t have to spend their life savings defending themselves in

court in multiple years. They can have it dealt with right off the

bat.

With that, I take my place.

Deputy Speaker: The member for Vancouver-Langara.

M. Lee: Thank you, hon. Speaker, and welcome to this post. It’s great to

see you there.

I’d also like to congratulate the Attorney General on his good

news on the addition to his family. Congratulations. Also, two other

positive comments to say that you made it through the sniffles and with

the throat. I’m surprised you didn’t have any throat lozenges, but you

got through it with all the Kleenex.

Also, I’d like to thank the Attorney General for having this

unplanned opportunity to be able to go through, with full detail, the

background and the underpinnings to this bill. That was very helpful,

I’m sure, to many members of this House, those who are listening and not

those who have been conversing while the Attorney General has been

talking. I did appreciate that effort.

I rise today to speak to this Bill 2, the bill entitled Protection

of Public Participation Act, which, as the Attorney General has

summarized, is closely modelled on the Ontario legislation with a very

similar intent.

As the Attorney General has gone through in great detail, this

House has previously seen legislation of a similar nature when, in April

2001, the government of the day passed an anti-SLAPP statute, which was

later repealed by the government that followed a few months

later.

This legislation, as the Attorney General has summarized, does

provide a more nuanced approach and does eliminate some of the initial

concerns regarding that legislation, as also commented on by the Ontario

review panel in 2010. Of course, this legislation that’s coming forward

under Bill 2 today — putting aside what happened in the third session on

Bill 32, which I will comment on later in my remarks — does have the

benefit of being able to draw upon similar legislation from other

jurisdictions.

In February of 2018, February 7, the Attorney General did receive

a letter authored by a number of leading former justices of the Supreme

Court of Canada; former Attorneys General of this province; a former

Premier of this province, Hon. Ujjal Dosanjh; other academics; and my

old law professor at the UVic law school, Chris Tollefson. I know that

in that letter, of course…. I would just like to comment on the

introductory words in this letter, which I think are important for this

House to keep in mind as we go forward. “Public confidence in the

administration of justice is critically important. The justice system is

currently experiencing many challenges, notably the insufficiency of

legal aid and the prevalence of delay.”

I appreciate the effort of this government to bring forward and

address something that has been of concern, as the Attorney General has

overviewed and provided an overview to this House, but I would say that

there are other pressing matters with how we deal with the reform of

administration of justice in our province and that legal aid continues

to be a pressing need. In terms of ensuring that we have access to

justice and the delays of the courts in dealing with various claims,

there may be, of course, some benefit to this legislation — although, as

the Attorney General indicated earlier, we have not seen, and it’s hard

to determine, how prevalent SLAPP suits are in Canada.

[2:30 p.m.]

[R. Chouhan in the chair.]

Before I go back to that point, I’d just like to say that the

authors of that letter to the Attorney General clearly indicated that in

their view: “Defendants of SLAPPs are exposed to onerous financial and

emotional costs incurred in a process that attacks their individual

right to speak on matters of public interest and chills citizen

engagement more broadly.”

We have seen a variety of U.S. states that have adopted anti-SLAPP

statutes. However, the scope of those statutes varies widely. Some of

those statutes only apply to actions brought by public applicants —

others, to speech seeking to influence decisions by political branches

of government. In jurisdictions such as California, it’s been identified

by some that anti-SLAPP legislation has reduced the number of

proceedings in their courts.

This bill’s scope is fairly broad, much like the statute passed in

California in 1992 and also subsequently in Oregon, Washington,

Louisiana and Oklahoma. The U.K. also updated its defamation law in 2013

under the Tory–Liberal Democrat coalition led by David Cameron. That

update sought to better protect speech on matters of public interest

from defamation claims.

With this context in mind, we do have some concerns with this

bill, most of which will be discussed at the committee stage. For the

purposes of second reading, I’ll provide some comments on

this.

As I just mentioned, I think it’s important, when governments

introduce new legislation, to consider what the problem is, to identify

what the evidence is that we’re trying to address. So the question that

will be asked, which the Attorney General did partially address, is the

analysis of caseload by the B.C. Supreme Court or other courts of our

lands in dealing with abusive lawsuits.

As I mentioned, there have been others, of course, who have done

the research and come to a conclusion that it is difficult to know

precisely how prevalent SLAPP suits are in Canada, not least because

many individuals and groups are effectively, perhaps, dealt with by a

mere threat of a suit but also having a case filed against them. There

are certainly…. The Attorney General characterizes this as a bit of a

tip-of-the-iceberg situation. That’s hard to know.

Having said all that, I do acknowledge, of course, as we all do in

this House, that it’s fundamental to our rights as citizens in this

country, as expressed by the Supreme Court of Canada, that freedom of

expression and respect for vigorous debate on matters of public interest

have long been seen as fundamental, or fundamental to Canadian

democracy.

Many years even before the Charter, the Supreme Court of Canada

suggested that the Canadian constitution contained an implied right of

freedom of expression on political matters. In 1982, of course, the

Charter, through

section 2(b), confirmed and expanded the constitutional

protection for freedom of expression, mainly extending it to the

press.

I’ll just read it again, as the Attorney General cited. He did

cover some of the ground that I intended to cover in my remarks, but I

think it’s an important understanding. The quote is that everyone has

“freedom of thought, belief, opinion and expression, including freedom

of the press and other media of communication.”

The constitutional status of freedom of expression under the

Charter means that all Canadian laws must conform to it. This is

something we’ve seen at least since 1982. The laws of defamation in our

country have continued to modify to meet this reinforced standard that

has been made more explicit in our Charter.

[2:35 p.m.]

As the Attorney General mentioned, we have also had rules of court

in our province, our civil rules that have been developed over decades.

The current rules, like rule 9-5, state that “at any stage of a

proceeding, the court may order to be struck out or amended the whole or

any part of a pleading, petition or other document on the ground that

(

a) it discloses no reasonable claim or defence, as the case may be, (

b) it is unnecessary, scandalous, frivolous or vexatious, (

c) it may

prejudice, embarrass or delay the fair trial or hearing of the

proceeding, or (

d) it is otherwise an abuse of the process of the

court.”

These are the four subsections which are in our current rules.

They have been there for some time. In dealing with any abusive court

cases, these rules are the tools which a court may employ, certainly, to

pronounce a judgment or to order that a proceeding be stayed or

dismissed and to order costs, such as special costs.

This power of the court under these rules may be exercised at any

time and any stage of the proceeding. For example, an application could

be brought the day after the writ of summons is filed.

Rules of court also grant power to award special costs, including

having the plaintiff who is the subject of the application pay all of

the costs incurred by the defendant in defending the action — that is,

if the proceeding falls within this relevant role. Rules 9-6 and 9-7

also provide the court with the

summary power to dismiss unmeritorious

cases after hearing some evidence in an application on an

affidavit.

The major issue that arises out of this bill is the weighing of

the public interest between two perspectives. This, I think, is what

we’ll discuss at length at the committee stage because the bill, in its

current form, does not seek to define what public interest means. As the

Supreme Court of Canada has cited, Lord Denning has said there is no

definition in the books as to what is a matter of public interest. He

certainly would not confine himself within narrow limits. So it’s to be

looked at broadly.

The Supreme Court of Canada stated: “To be of public interest, the

subject matter must be shown to be one inviting public attention, or

about which the public…has some substantial concern because it affects

the welfare of citizens, or one to which considerable public notoriety

or controversy has attached.”

The Attorney General also made this quote, but because it’s in my

remarks, I’ll continue. “Public interest may be a function of the

prominence of the person referred to in the communication, but mere

curiosity or prurient interest is not enough. Some segment of the public

must have a genuine stake in knowing about the matter

published.”

When the Court of Appeal for Ontario, in the decisions that the

Attorney General cited, applied the equivalent Ontario public interest

protection act, the court stated that the authorities offered no single

test for public interest, nor a static list of topics falling within the

public interest. As we’ve covered, guidance, however, may be found in

the cases on fair comment and subsection 2(

b) of the Charter.

In short, the judgment of public interest is case-specific. This

means that the judiciary very much holds the entirety of the

responsibility for ensuring that this bill, in particular the judgment

to be applied in subsection 4(2), is implemented fairly.

[2:40 p.m.]

Overall, in Canada in particular, this is still a very novel and

untested area of the law. This is why I believe that it’s our duty as

legislators in this House to ensure that the legislation that we have in

front of us is framed properly, because we are shifting the burden under

this bill from what has been built up under common law, under our

defamation law and under our rules of court, mechanisms that have

already been in place to ensure protections for freedom of speech while

balancing interests of reputation.

Having said that, at the committee stage, I believe that we should

be discussing and considering the definition of “public interest” in

subsection 4(2)(b), in particular, where the balancing occurs, and

whether there should be some clear limits placed on the definition of

public interest for the purpose of this bill to ensure that it is the

motivation that is expressed in this bill that we’re protecting freedom

of expression and the preservation of our democracy, and nothing else,

so that key among the ideals of this bill is protecting respondents from

defamatory or spurious claims.

We will be addressing the idea of balancing one public interest

against another, which is how this becomes a concern — the public

interest as viewed by the plaintiff versus the public interest as viewed

by the defendant. The interests, of course, will conflict, as from the

perspectives of the plaintiff and the defendant.

The decision that the Attorney General went through in detail, of

the Supreme Court of Canada in Grant v. Torstar , certainly is

something that we would acknowledge. Former Chief Justice McLachlin

wrote that while the law must protect reputation, the current level of

protection — in effect, this regime of strict liability — is not

justifiable. She went on in that decision, in 2009, to say that the law

of defamation should therefore be modified to recognize a defence of

responsible communication on matters of public interest.

This is one of the examples as to how the law of defamation in

Canada has been modified over the years, particularly since the Charter.

In that decision, the Supreme Court modified the law around the tort of

defamation to recognize a defence of responsible communication on

matters of public interest.

As the Attorney General went through in detail, there are a number

of requirements as to how this new defence would be applied, including

the diligence that would be required to verify the allegations that

might have been stated. The concern on this bill will be, as we look at

the committee stage level, how this bill again would expand effectively,

in effect, the protections of freedom of expression from a lawsuit

alleging defamation.

The Ontario Court of Appeal has looked at this definition and

applied the legislation and found that the key motivator for the cases

was that there is a distinction between statements or other expressions

that make a reference to something of a public interest and expressions

that relate to a matter of public interest. That may be a fine

distinction.

Having said that, the Ontario Court of Appeal has further ruled

that public interest does not turn on the size of audience. Especially

in today’s world, communications of private matters can find very large

audiences quickly. I believe in that statement, of course. We need to

other forums. The court goes on to state, on the other hand, that

statements between two people can relate to matters that have had or

have a strong public interest component.

[2:45 p.m.]

As I’ve said, the concern is that as of right now, Canada lacks a

clear articulation of a test or factor analysis to determine what falls

within the public interest. I would suggest that we should consider the

affirmation of some of those fundamental principles to aid the judiciary

through our legislative role so that the public interest is strengthened

by this legislation.

For example, an excellent place to start to consider this would be

to look at the unwritten principles which underlie our constitution, as

enumerated by the Supreme Court of Canada in the Reference re

Secession of Quebec opinion. These principles include

democracy, the rule of law, the independence of the judiciary, the

protection of civil liberties and respect for minorities. I would think

that we all can agree in this House that protecting such principles is

in the public interest.

Of course, underlying all of this is the overarching concern that,

to the extent this legislation is not properly balanced, it could

potentially deprive plaintiffs of legitimate remedies for harm caused by

parties purporting to act in the public interest. For example,

defamation law provides a careful balance between freedom of expression

and protection of reputation. In this legislation, under Bill 2,

protecting more expression under the name of public participation may

distort that balance and create undue harm to reputation.

The heart of Ontario’s anti-SLAPP legislation was recently

described by Justice Doherty of the Ontario Court of Appeal as proving

that a lawsuit has merit. The harm the plaintiff is suffering can be

monetary or non-monetary, such as reputational damage or infringement on

personal privacy. However, the plaintiff must provide a basis on which

the harm or potential harm can be determined.

Thankfully, at least from the plaintiff’s perspective, the

plaintiff is not required to have a fully developed damages brief. But

assuming the plaintiff must have a commonsense reading of the claim

supported by sufficient evidence to connect the challenge expression and

damages….

These are the sorts of concerns and considerations I believe we

should be reviewing at the committee stage, and that would be our

intention. I must also say, though, as I mentioned at the outset, that I

am concerned as to why the previous version of this bill — which was

Bill 32 in the last legislative session, which was left to die on the

order papers — has now been revived by this almost identical bill. The

only difference, of course, between Bill 32 and Bill 2 is the timing at

which this bill or legislation would have effect.

Bill 32, in the previous formulation, would have applied

retroactively to all legal proceedings whether or not they had commenced

before that bill’s introduction to this legislature. That component

certainly was not introduced in the Ontario legislation, and I find it

troubling that it was included by this government in that prior bill.

For reasons that were unclear to us, that bill was not brought

forward.

But now, clearly, with the introduction of Bill 2 in this current

formulation, it is clear. It must have been identified to this

government as to the concerns around the retroactive nature of the

application of this legislation, which raises the question as to why

this government brought forward that legislation in that form to begin

with. Certainly, I would have expected that the Attorney General and the

government would appreciate the concerns that would arise from the

retroactive application of a law in respect of questions around natural

justice and procedural fairness — principles that are articulated in our

Canadian constitution.

I would like to canvass this at the committee stage: why this

government brought forward that legislation in that form, with that

retroactive effect.

[2:50 p.m.]

Why was it so important for this government to have that apply in

that way, particularly when the Ontario equivalent legislation did not

have that component? It raises the question as to what the intent of

this government was. Certainly, they felt the need to introduce that

legislation. The implications as to the number of cases that it would

have disrupted in the court system would have led us to more delay and

backlog.

With that, I look forward to canvassing these concerns with the

Attorney General and others at the committee stage, and that completes

my remarks.

A. Olsen: It’s my pleasure to stand today and speak to Bill 2, the

Protection of Public Participation Act of 2019. I think that it’s

important to frame my very brief comments on this bill with the amount

of correspondence that I have received in support of the legislation

that was proposed last year, as was raised by the member who spoke

previously.

I know this is an issue — the SLAPP suits, anti-SLAPP legislation

or the Protection of Public Participation Act that we see in front of us

today to debate — that is of particular interest to my constituents. I

know that as someone who’s been in local government, I’ve seen how this

has impacted citizens in my community over the years, how they have been

participating in public processes — involved in their communities and

involved in ensuring that their municipality and their local governments

and, indeed, the provincial government are undertaking good process —

and having every right to stand up for themselves and for their rights

as citizens and individuals in a community and how they have been

chilled by being served.

I know my colleague is going to speak to this, so I’m not going to

speak at great length to this. But in many respects, just the act of

someone standing on your front doorstep and serving you with legal

documents — and in large part, people that have never had any

relationship with the law in that way at all — has a way of crippling

your willingness to participate in these public processes.

So I’m certainly pleased to be able to stand on behalf of the

numerous constituents from Saanich North and the Islands and beyond who

have contacted me to say that this has had a negative impact on their

lives — the strategic lawsuits against public participation and how that

has impacted their lives. I’m pleased to be able to stand today as the

government is putting forward legislation to deal with this.

I know that 20 years ago anti-SLAPP legislation was repealed by

the former B.C. Liberal government. One of the points that was made —

which I find kind of troubling, in one of the quotes — is that they were

concerned about it creating a “protest culture.” I think that it’s

important that we acknowledge that what evolved instead in this province

was a culture of entitlement.

As we are making sure that we protect the public interest…. And I

respect the member who spoke previously about the important debate that

I think the two legal minds on both sides of this House are going to

have during the committee stage. I certainly look forward to witnessing

that and participating as my rather small legal mind can.

I would just say that I think that it is important that we have

that discussion about the public interest, because that’s clearly what

our main role here is in this place. It’s to protect and to act in the

public interest.

[2:55 p.m.]

As we work towards reinvigorating that in our province, taking the

focus away from the special interests and private interests and working

on behalf of the public interest, I’m heartened by the government’s

efforts to discourage the use of litigation as a means to unduly limit

the participation of the public. I look forward to the debate, as I

mentioned.

Frankly, I would have spoken a lot longer on this, but the member

for Vancouver–Point Grey, our Attorney General, must have got hold of my

notes. Without being repetitive, I would say that he did a very thorough

job of explaining his bill, and I look forward to engaging at the

committee stage of this debate.

S. Furstenau: It’s my honour today to rise and speak to Bill 2, the Protection

of Public Participation Act. Inasmuch as my colleague from Saanich North

and the Islands was brief, I may go the other way, because this is an

act, a piece of legislation, that speaks to a very personal experience

for me in my community.

I’m going to tell this story, and I’ve told it many other times in

this House. But the reason I tell this story over and over again is

because it relates to so much of the work that is happening in this

House under this current government.

From the very beginning, the Shawnigan community was abundantly

and consistently clear that we did not accept the risk that a

contaminated landfill posed to our watershed and our drinking water.

Right back to 2012, the community had been standing up and saying

no.

The Shawnigan Residents Association hired an independent scientist

to assess the proposal, the site and the engineering. Their opinions

were clear. This was an unsuitable location, and the landfill would,

indeed, pose a threat to our water quality.

The community began its efforts to engage with the provincial

government right from the outset. Hundreds voiced their concerns at a

public meeting in July 2012, and hundreds more wrote letters once the

draft permit was issued.

Citizens John and Lois Hayes and Rick Saunders filed their own

appeals of the permit when it was issued, along with the Cowichan Valley

regional district and the Shaw­nigan Residents Association. The

Environmental Appeal Board hearings took 31 days over five months, and

many of us attended and watched on line, learning about the serious

concerns of the independent experts.

We were also shocked by what we perceived as blatant unfairness

during the hearing, particularly when the panel refused to allow

evidence or to hear witnesses that were brought forward by the Shawnigan

Residents Association. Indeed, we were vindicated in this four years

later by a B.C. Supreme Court ruling by Justice Sewell, who wrote in his

ruling, to answer the question: “Did the

Environmental Appeal Board act fairly in its treatment of opinion

evidence…?”

Section 96 of his ruling: “I have concluded that the board

did not act fairly in the manner in which it received opinion evidence

in this case.”

We waited eight months for the Environmental Appeal Board to make

its decision, and when it came, on a Friday afternoon, it was a

devastating blow to our community. But we didn’t give up; we geared up.

Nearly 300 people came to a community meeting on March 24, 2015, and we

decided that we would work together as a community for as long as it

would take.

After the Environmental Appeal Board hearing decision, 15,000

signatures were collected, hundreds more letters were written and

rallies and protests began. The opposition to the permit was

overwhelming, and the support was nonexistent, but that in no way swayed

the provincial government. All of our pleas, our evidence, our research

and our efforts were dismissed over and over again.

We felt the process was weighted against us, against independent

scientific evidence and against common sense. The process seemed to have

a predetermined outcome — getting to yes — and it seemed that the

predetermined outcome controlled the process.

Consider what was lacking from the process that allowed a

contaminated landfill to be put at the headwaters of our drinking

watershed. Was there a landfill siting study? Nope. Was there an

independent environmental assessment? Nope. Was there equal weighting of

scientific evidence that conflicted with that of the engineers hired by

the company? Nope.

Was there consideration of the previous actions of the proponents,

including non-compliance with their mines permit at the very site? Nope.

Was there consideration of the experience of the proponents or their

engineers with designing, engineering and managing a contaminated

landfill site? Nope.

Was there consideration of the opposition of the Cowichan Valley

regional district, Island Health, Cowichan Tribes, Shawnigan community,

the capital regional district and the city of Victoria? Nope.

[3:00 p.m.]

Worst of all, when it was revealed that Active Earth, the

engineers who assessed the site and designed the landfill, were in a

50-50 profit-sharing deal with the owners of the site, the Ministry of

Environment did nothing and allowed the soil to continue to be imported

to the site. Their excuse: the matter’s before the courts. The result of

this inaction: there is currently over 100,000 tonnes of contaminated

soil sitting in a quarry at the headwaters of our drinking watershed,

leaching into our environment.

As a community, we felt that we had no choice but to stand up for

our watershed, which we did for years on end. The effort crossed all

lines, including political: the sitting NDP MLA, the sitting federal NDP

MP, the leaders of the B.C. Green Party, the federal Green Party, the

candidate for the B.C. Liberal Party, support from Cowichan Tribes, from

the Cowichan Valley regional district, from the city of Victoria and

many others.

The campaign to protect our watershed engaged the entire Shawnigan

community and was supported across the province and, indeed, across the

country. Ultimately, the permit that we so vehemently opposed was

revoked. But before that happened, Justice Sewell of the B.C. Supreme

Court issued a ruling in a judicial review that had been brought forward

by the Shawnigan Residents Association.

We as a community had been deeply concerned, obviously, about this

permit, and Justice Sewell also expressed his concerns. This is reading

from his decision in January of 2017. He says: “The existence of a

financial benefit to the qualified professional from a particular

outcome is a clear example of a reasonable apprehension of bias in the

person preparing the opinion.”

He said: “If the question before me had been whether to set aside

the permit, I would have had no difficulty in setting it aside and

remitting it to the ministry for reconsideration because the technical

assessment review was prepared by persons who were biased in favour of

approving the project.” He also wrote: “This is a circumstance that goes

to the heart of the integrity of the approval process under the

Environmental Management Act.”

A Supreme Court judge of B.C. identified what hap­pened in

Shawnigan Lake as “going to the heart of the integrity of the approval

process of the Environmental Management Act.”

There is a part of the story of Shawnigan that didn’t make a lot

of headlines. Community members, single mothers, grandparents,

professionals and long-standing volunteers were getting knocks on their

doors. And when they opened them, they were served with documents

notifying them that they faced a lawsuit. One woman told me in tears

that she’d never even had a parking ticket in her life. On one occasion,

after a community meeting in the village watershed office, people were

greeted by a process server as they left the meeting, each of them

served with court documents telling them that they were going to be sued

for what they were saying to protect their own watershed.

For the people of Shawnigan who wanted nothing else but to protect

their drinking water from potential contamination, these documents had

the intended effect. They created fear — a fear of speaking up, of

speaking truth, of standing up for the future of our community. It

created a chill in Shawnigan Lake.

At the same time, journalists were receiving emails from lawyers.

As the Attorney General pointed out, this is not uncommon. The letters

were threatening the journalists that if they continued to report on

this story, they too would face legal action. While we stood for years

and years telling the truth about what was happening to our community,

about the unfolding events that strike at the heart of the approval

process of the Environmental Management Act, we were facing, as a

community, this threat.

[3:05 p.m.]

Ultimately, when the permit was revoked…. We are now left with

more than 100,000 tonnes of contaminated soil at the headwaters of our

drinking watershed. We remain steadfast in our commitment to seeing that

soil removed. It never should have been deposited there in the first

place. It needs to be put in an appropriate location, not in a quarry

halfway up a mountain with a creek that wraps around it that feeds

directly into the lake that is the drinking water source for our

community.

What should never have been taken away from our community was the

right to stand up and speak out on behalf of our watershed and our

future without the fear of being sued. The legislation introduced today

will ensure that communities across B.C. will be able to speak up and

speak out when they feel that their future is put at risk.

A democracy is built on a foundation of trust and the rights of

citizens to be able to speak up and speak out for their future and their

children’s future. I applaud the Attorney General for bringing this

legislation forward. I look forward to the debate at committee

stage.

Deputy Speaker: Seeing no further speakers, the minister to close the

debate.

Hon. D. Donaldson: I’ll move that second reading debate is closed.

Deputy Speaker: Hon. Members, you heard the motion. All in favour say

aye.

Some Hon. Members: Aye.

Deputy Speaker: Opposed?

The motion carries.

Hon. D. Donaldson: I call that we move to second reading debate on Bill 3.

Deputy Speaker: The House will be recessed for five minutes.

The House recessed from 3:07 p.m. to 3:13 p.m.

[R. Chouhan in the chair.]

Hon. D. Donaldson: Hon. Chair, I understand we have to be precise in the wording, so

I’m going to re-read what we just did. I move that Bill 2, Protection of

Public Participation Act, be now read a second time.

Motion approved.

Hon. D. Donaldson: I move that Bill 2 be referred to a Committee of the Whole House

to be considered at the next sitting of the House after

today.

Bill 2, Protection of Public Participation Act, read a second time

and referred to a Committee of the Whole House for consideration at the next

sitting of the House after today.

Hon. D. Donaldson: I call second reading of Bill 3, inti­tuled the Municipal

Affairs and Housing Statutes Amendment Act, 2019.

BILL 3 — MUNICIPAL AFFAIRS AND

HOUSING STATUTES

AMENDMENT ACT, 2019

Hon. S. Robinson: I move that Bill 3, intituled the Municipal Affairs and Housing

Statutes Amendment Act, 2019, be read for the second time.

I am pleased to move that the Municipal Affairs and Housing

Statutes Amendment Act, 2019, be read for a second time because this

bill proposes to amend the Building Act, the Cultus Lake Park Act, the

Local Government Act, the Resort Municipality of Whistler Act and the

Vancouver Charter.

[3:15 p.m.]

These amendments address regulatory gaps and issues that have been

identified in the Building Act. They make targeted changes to help

modernize key aspects of the Cultus Lake Park Act. These changes allow

local governments to respond to various community needs, and they also

ensure that local government legislation is up to date. The amendments

will have meaningful impact by ensuring that local government

legislation is clear, that it operates effectively, and by enabling

local governments to continue to respond to the various circumstances in

their communities.

First, I’d like to take a few moments to talk about the Building

Act, and the first amendments are to this act. In British Columbia, the

Building Act establishes the province as the primary authority

responsible for establishing building regulations such as the B.C.

building code. Local governments can regulate many matters related to

buildings and enforce the B.C. building code but may not modify the

building code’s technical requirements. Under the Building Act, the

minister can identify matters as unrestricted, which permits local

governments to establish their own technical building requirements for

that matter.

Now, this binary system of complete provincial or complete local

government authority for technical building requirements limits

collaboration and flexibility for both parties. So two changes are

proposed to the Building Act to clarify the authority of the minister

and of local governments to regulate different aspects of the same

matter.

The first change will authorize the minister to establish

technical building requirements and to subdelegate certain decisions to

local government, such as when or where those technical building

requirements apply. This change will make building regulations more

effective and administratively more efficient. It will provide a

foundation for other planned regulatory amendments to address urgent and

complex policy issues relating to the safety of secondary suites,

alterations to existing buildings, and fire sprinkler

requirements.

For example, a local government may choose to require fire

sprinklers in homes in all or part of their community where fire

services are not present or are inadequate to meet the needs of the

community or areas subject to wildfires. The technical requirements for

installing sprinklers are written in the building code. This amendment

will give local governments the authority to require sprinklers in a

specific situation.

Again, we have local governments that work hard every day on

behalf of their constituents. We fundamentally believe — I think all

members of this House believe, because I know that there are a lot of

members who come from local government — that local governments know

their communities best and that this change helps them to deliver for

their constituents.

The second change will clarify the minister’s authority related to

unrestricted matters, while eliminating a possible regulatory gap

identified since the Building Act was introduced. The change will allow

the minister to impose conditions on unrestricted matters, and it will

clarify that even though the matters are unrestricted, local governments

still need to operate within the scope of other applicable laws and

authorities.

These two changes do not expand the minister’s authority for

establishing building regulations or permit local governments to do so.

The changes clarify the minister’s authority to share regulation of a

matter with local governments or place conditions when enabling local

governments to establish technical building requirements.

In consultation on matters such as energy efficiency, secondary

suites and fire sprinklers, local governments have requested that the

ministry develop more flexible regulations established by the province

and administered by local governments. The ministry has consulted with

UBCM staff and industry stakeholders regarding these changes and heard

that these are considered minor amendments, and they’re generally quite

positive to providing these sorts of flexibilities.

Once again, I think this demonstrates our commitment, as a

government, to working together with all stakeholders, making sure that

we’re a responsive government and that we are paying attention to the

kinds of things that various orders of government need in order to

deliver for the people. We’re all here to serve people. When we can do

it together and when we can do it in a collaborative manner, that’s

better for the people that we serve.

[3:20 p.m.]

The second part that I want to refer to is the Cultus Lake Park

Act, and that’s the second set of proposed changes to amend this act.

Now, Cultus Lake is a fabulous place. I was talking to some folks around

times that we have been there. I can think back to taking my kids to

Cultus Lake.

It’s a well-loved park, and it has its own act. The park is

situated within the electoral area of the Fraser Valley regional

district. The original land for the park was given to the city of

Chilliwack in trust by the Crown in 1928 — I see the member representing

the area nodding his head — and it wasn’t until 1932 that the Cultus

Lake Park Act established the Cultus Lake Park Board, which governs the

park.

It’s a unique jewel in the member’s community. It’s known for its

beauty. It’s known as a great place to party, if I recall. I think it

still is, given the member’s smirk over the other way. It’s a lovely

getaway. But I have to say that it’s also a wonderful place for

families. Now that we’re all a little older and wiser, we bring our

families there now. Its proximity to the Metro region has made it a

destination, and it’s a fabulous place to be.

It’s unique, not just because it’s a beautiful place and not just

because the original land was given to the city of Chilliwack in trust

by the Crown. What makes it unique is that it’s one of the few park

boards that we have that has its own legislation. It was established so

long ago that it’s really important to modernize it, to make sure that

it reflects the current issues and concerns of the time.

The park board is a special purpose governance body with limited

regulatory authority, but it’s also really clear to appreciate that it’s

not a local government. It’s not subject to local government

legislation, such as the Community Charter and the Local Government

Act.

The park board consists of five members. They’re elected members.

Three of them are elected from the Cultus Lake Park, and the remaining

two are elected from the city of Chilliwack, so it’s a real hybrid

board. They are all elected at the same time and in the same manner as

local government elected officials.

Now, the mandate of the park board…. They have the authority to

regulate, to manage and to protect the park for the purposes the land is

being held in trust by the city of Chilliwack. It’s really important

that they have the right authorities to do the job that they’re

entrusted to do.

[J. Isaacs in the chair.]

The terms of the trust do not allow the park board to sell the

land, but the act enables the park board to issue short-term leases to

lots within the park. Currently the park has about 1,100 leaseholders

with renewable unregistered leases of 21-year terms.

The park board does have some authority to provide services. They

provide fire protection, they provide garbage collection, and they

operate campsites within the park. I have to say that I’m most familiar

with the campsites. It was a place that I would go, while I was in

university, with a lot of university friends, and I have great memories

of the times camping at Cultus Lake. One of the things that I

appreciated the most was….

As I think back, I would try to book my courses from Monday to

Thursday so that I would have Friday off. I see another member on the

other way nodding his head. I think he went to the same school of

thought that I did, which was that you could get a three-day weekend in

that way. We would take off in April, if we could sneak away —

certainly, in September we could still camp — take off Thursday night

and have a three-day weekend at Cultus Lake. I will not share anything

else about what we would do at Cultus Lake except that we would pack up

Sunday afternoon and come back.

Interjection.

Hon. S. Robinson: Stays at Cultus Lake, right.

Now, I think we need to recognize that while it’s all fun and

games at the park and that what happens at the park at Cultus Lake stays

at Cultus Lake, there have been some governance challenges. There’s been

quite a history of challenges, and I’m sure the member across the way is

familiar with them.

[3:25 p.m.]

I understand, historically, there’d been consideration of the

feasibility of incorporating the Cultus Lake Park as a municipality and

what that would mean around land tenure. The Soowahlie Indian band is

right adjacent, so there’s what would happen at that point.

There was a real commitment to recognizing the value of the park

as a park and to keeping it as a park. Making sure that we take a look

at how to have it operate as a park while at the same time allowing the

park board to have the opportunity to manage the 1,100 residents of the

park, as well as the campground, and make the decisions that you need so

that it’s all operating well is really important.

Now, some have asked the question about whether the city of

Chilliwack has a role in the governance of the park. I think it’s an

important question to think about. There is some formal aspect of the

park’s governance, because the city is the trustee for the parkland, so

the amendments that we’re doing, that we’re proposing here, give the

park board some authority formerly held by the city. However, the

proposed amendments maintain the city’s oversight in key

areas.

We also need to remember that this act started in 1932. That’s

when it was initiated, but it hasn’t been significantly modernized. So

amendments that are being proposed here are made from a time that it was

a bit piecemeal. I think, you know, if you’ve ever read the act, it’s

pretty piecemeal. There’s some archaic language — 1932 was a long time

ago — and it lacks clarity.

The amendments that we’re proposing really modernize the language

of the act without changing the substance or the legal intention. There

are some grammatical and organizational changes for clarity and ease of

reading, making the act a more functional document for those who rely on

it.

If our good friend the now mayor of Nanaimo, Leonard Krog, were

here, he’d have lots to say about where the periods are and where the

commas are and how it reads more elegantly. He would probably read out

to us the difference between how it used to read and how it will read

now. I’m going to spare all of you and all of us that, because I could

never do it justice the way he could.

I do want to point out an example. I’m not going to read it out.

What we found in reviewing the act was that there was inconsistency in

the language used between sections. So these amendments really are about

aligning the language between all sections for consistency so that we

are all using the same language throughout the act.

You might be asking, at this point, what the specific components

are. I think it’s really important that everyone in the House pay very

close attention to these very specific details, because this is

important stuff. Just ask the member who’s sitting behind. This is very

important to his people.

What we did, when we looked at this, is we took a look at what the

Community Charter has to say, because it’s really a good guide. It’s a

really good document. I believe that document was in the ’90s, if I

recall. It’s a really excellent document.

It will provide modern tools for bylaw enforcement within the

park. It will modernize rules regarding park board member conduct and

meeting procedures, it will provide the park board with corporate powers

available to municipalities, and it will authorize the park board to

transfer its water system to the Fraser Valley regional

district.

Now, the proposed amendments are targeted to specifically address

governance within the park. There are no impacts to tenure or land held

in the park. I want to say that this is the second and final part of a

larger package of amendments to the act. We had taken some initial steps

previously, in the spring of 2018, that were passed.

I could offer a quiz, although I know that nobody can answer, so

I’m going to put out the quiz, and then I’ll answer it myself. There is

one other park board in the province.

Interjection.

Hon. S. Robinson: I know, right.

The Vancouver park board is the other one. People will often want

to talk about them as in tandem, but the Vancouver park board was

established under the Vancouver Charter, so it does have its own

legislation. I don’t want people to think that this is going to have an

impact for the Vancouver park board. This is a stand-alone, unique piece

of legislation.

[3:30 p.m.]

I want to talk about the bylaw enforcement piece. The park board’s

duties and powers are significantly more limited than those of

municipalities and regional districts. I think it’s important that

everybody in the House understand the difference, because it’s really

important. I will say, for those who had been at the park in their

college days: they didn’t have the same enforcement. I will say how

grateful I am for that, but the next generation had better pay

attention.

The duties and powers focus, really, on the park purposes. The

park board has the authority to pass bylaws for the use, regulation,

protection and management of the park, and the park board uses this

authority to regulate matters — such as noise, which I was not guilty

of; littering, which I was not guilty of; the use of public spaces,

which I was not guilty of; and the maintenance of property by

leaseholders, which I was certainly not guilty of.

The proposed amendments will not change the scope of the

regulatory authority, but the park board does want access to different

bylaw enforcement tools. That’s really the issue that’s at hand here.

Currently the park board may only enforce bylaws by prosecuting

infractions as offences in Provincial Court. This is time-consuming, and

it’s expensive. In addition, the maximum fine that they can set is only

$50. Now, I assume that in 1932, $50 was a lot of money. I will tell you

that in the ’80s, when I went to the park, $50 was a lot for me too. But

I suspect that today, in 2019, it’s really not as significant. It’s

certainly not a high enough deterrent.

The proposed amendments will enable the park board to use

municipal ticketing and bylaw notice enforcement or adjudication to

enforce bylaws. It’s an effective bylaw enforcement method. It’s used by

most local governments. It limits or eliminates courts. It’s

cost-efficient; it’s time-efficient. It will enable the park board to

impose significantly higher fines for bylaws that are enforced using

these tools. The maximum fine for bylaw notice enforcement is currently

set at $500 and $1,000 for bylaws enforced by ticketing. I think that

will help.

The park board will also be able to enforce its bylaws by civil

action — using an injunction, for example, to stop the contravention of

a bylaw. That’s for more serious or continuing matters. It just allows

the park board to have some tools at its disposal. We have heard, over

the years, concerns about noise and about the misuse of public lands.

can get out of hand much more quickly. They need some opportunity to

better manage the park.

Now, another item that we’re looking at is a request from the park

board. They’re requesting stronger conflict-of-interest and

confidentiality protection rules. With park board members, there haven’t

been problems in this regard, but the park board is seeking the same

clear and robust conduct rules that apply to local governments. They

want to make sure, as elected officials, that they are on side. The park

board has been informally following these rules for a number of years,

but it’s really best practice to make sure that they actually have the

tools, within the legislation, that allow them to do that.

The act requires that the city of Chilliwack, as a trustee for the

park area, set the remuneration for park board members by bylaw. As the

majority of the park board members are, since 2014, elected from the

park — that’s three out of the five members — and not the city of

Chilliwack, it is efficient and appropriate for the park board to set

remuneration for its own members, much like they do in a local

government.

The current practice of the park board is to have a chair and a

vice-chair. The act is being amended to codify the position of

vice-chair and provide for the vice-chair’s appointment and

remuneration. Again, we’re just bringing it up to make sure that the act

is consistent with practice. It’s sort of recognizing that the act

hasn’t kept up with modernization. This is an opportunity for us to

modernize this act.

There are currently no rules regarding open or closed meetings

under the act. For example, the act does not establish the fundamental

default rule that meetings are generally open to the public. Given the

role and mandate of the park board, it is important that the public has

access to decision-makers and meetings where decisions are made, while

at the same time providing the park board with the flexibility to hold

closed meetings where it’s appropriate.

[3:35 p.m.]

The park board will now be subject to the same meeting

requirements and safeguards as local governments. The park board has

been informally following these rules, once again, for a number of

years. These amendments that are proposed here will align the park

board’s authority with its practice. Once again, we’re modernizing it.

We’re making sure that there is some consistency.

Just to be really clear, we will not be granting the park board

municipal corporate powers that expand beyond the scope of its

authority. The type of corporate powers being provided to the park board

relate to the process for operating a local government. That is, these

powers do not provide the substance of municipal authority but just how

these authorities are exercised. These changes are really about going

from 1932 to 2019 — we have learned so much about how to do governance —

and making sure there’s real opportunity for the park board to have the

ability to be recognized, in the act, for the work that they’re

undertaking. That’s really good work.

The last piece of this particular act that we’re looking at is the

transfer of the water system to the Fraser Valley regional district.

Now, the water system is currently operated by the Fraser Valley

regional district under a three-year agreement with the park board. The

water system requires significant upgrades that are estimated to cost $5

million. As the park board is statutorily barred from incurring this

level of debt, the Fraser Valley regional district borrowed the funds to

undertake the upgrades in 2016. Given this investment in the water

system, all parties agreed that the Fraser Valley regional district

should own the assets and continue to operate the water

system.

If you think back to 1932, I suspect there were wells involved.

It’s a different era now. Making sure that those households and that

beloved campground have access to water is a good thing. The

relationship with the Fraser Valley regional district is excellent.

We’re making sure that they can continue to receive this water. We’ve

done consultations with the city of Chilliwack and the Fraser Valley

regional district on the proposed amendments around the water system.

Everyone agrees it’s the right thing to do. That’s what we’re proposing

to do here. That’s what I have on this act.

I have the Local Government Act, as well, that I want to talk

about — the changes to that in this miscellaneous bill. We’re proposing

to make a number of changes. The first change is a housekeeping

amendment that would remove a reference, in a notice of assent or

referendum voting, to a certificate requirement that no longer exists.

The proposed change will provide clarity for local governments and the

public by removing a redundant requirement.

Amendments to the Local Government Act also add an authority to

allow a regional district to provide capital financing to a business in

order to bring high-speed Internet to underserved

communities.

Now, the proposed changes align with the existing framework in the

Local Government Act, which allows regional districts to provide capital

financing for services that are often considered essential, such as

telephone, natural gas and electricity services. These amendments

directly respond to a need that has been identified by regional

districts and has been the subject of Union of B.C. Municipalities

resolutions, by providing an additional tool that can be used to ensure

that rural and remote areas have access to high-speed Internet

services.

I wanted to spend a few minutes on this particular component

around the capital financing opportunity. I have been involved in local

government as a city councillor. Coming from Coquitlam, there wasn’t a

whole lot of concern around local government access to these sorts of

things, but in rural and remote British Columbia, it’s a completely

different thing. We certainly heard from local communities that small

rural communities’ ability to deliver essential services is compromised

and is limited by this legislation. We heard what they had to say. We

heard that rural and remote British Columbia and the regional districts

want the ability to provide this, and we’ve responded. We thought that

was really, really important.

[3:40 p.m.]

The next part of this miscellaneous bill is the Resort

Municipality of Whistler Act. The proposed amendments to the Resort

Municipality of Whistler Act allow for the removal of the role of the

minister responsible for local government in overseeing Whistler’s

official community plan. Specifically, the amendments would repeal, by

regulation, the requirement for the minister to enact an OCP for

Whistler. They would also remove the requirement for the minister to

give written approval for Whistler’s OCP.

The amendments give Whistler a level of autonomy in the official

community plan process that is consistent with that provided to nearly

all other local governments, which are not required to have their

official community plan approved by the province.

The proposed amendments arise against the backdrop, I have to say,

of ongoing negotiations regarding the economic development and land use

planning involved. The ministries of Municipal Affairs and Housing,

Indigenous Relations and Reconciliation, and Forests, Lands, Natural

Resource Operations and Rural-Development; the Squamish Nation; the

Lil’wat Nation; the resort company, Whistler-Blackcomb; and the resort

municipality of Whistler have all been working very hard to make this

happen.

The ministry has worked with the Squamish Nation and the Lil’wat

Nation on this issue for over a year. The negotiations, I have to say,

have gone well, and in January of this year, a high-level agreement was

reached between the parties. To ensure there is sufficient time to

finalize the legal agreements that will make effective the high-level

agreement, it is proposed that the amendments would come into force

through regulation at a later date. Removing ministerial approval is a

key step to supporting reconciliation measures underway between Whistler

and the Squamish Nation and the Lil’wat Nation.

The final components are the amendments to the Vancouver Charter.

The first change is a housekeeping amendment that is parallel to the

housekeeping amendment being proposed to the Local Government Act that

removes the reference to a requirement in a notice of assent voting that

is redundant.

The amendments are also proposed to align with the Vancouver

Charter and the Local Government Act by giving the city of Vancouver the

same housing agreement authorities as other local governments.

Specifically, the proposed changes would allow the city of Vancouver to

include in a housing agreement the price of housing that may be charged

by sale, lease or cooperative ownership, in addition to the current

authority that allows a housing agreement to set up rents that may be

charged. Ministry staff did consult with staff from the city of

Vancouver, who indicated support for these amendments.

The proposed changes will support the city of Vancouver’s

initiative to deliver affordable home ownership and our government’s

30-point plan for housing affordability. The proposed amendments will

ensure that the province’s local government legislation operates

effectively and enables local governments to better respond to their

needs.

I hope that everybody here will join me in support of Bill 3. I

would now like to move second reading.

L. Throness: It’s a pleasure to rise to speak to Bill 3, the Municipal Affairs

and Housing Statutes Amendment Act, 2019.

I appreciate the words of the minister preceding me. It was great

to hear that she has an affection for Cultus Lake, having spent time

there making use of its recreational amenities in her college days. The

Cultus Lake Park Board has made a great big application for an

infrastructure grant in order to replace the wastewater system that was

used when she was in her college days. Knowing that she has a great

affection for the park will just make it much more easy for me to speak

about that infrastructure grant, which I will do in due

course.

I was really pleased to see the bill come before the House

yesterday. It came as a surprise to me, and a pleasant surprise. I will

want to talk about that. I’m going to deal specifically with the Cultus

Lake amendments. There are 21 clauses in this bill, and 17 of them

actually deal with Cultus Lake. I’m only going to speak about Cultus

Lake because Cultus Lake is in my riding. It’s one of the great jewels

of the provincial parks of B.C.

I want to talk about some historical context. These may be the

last amendments for a number of years, so I want, for posterity’s sake

and for perhaps an MLA who follows me, to understand the context of

this, because there will no doubt be further legal changes.

I first arrived in Chilliwack in 1983 and was quickly introduced

to the delights of Cultus Lake. A year later I began to work for the

local MLA, Harvey Schroeder, who’s still doing well today. In 1984, I

came to know Jake Dyck, who was then chair of the Cultus Lake Park

Board. I had no idea of the governance structure of the park until early

in my tenure as MLA, after I was elected in 2013. When I was elected, it

quickly became plain that there were disagreements on the board. There

were seven commissioners at the time, and they had divided into two

opposing camps, four always voting against three. Residents were very

angry at the board about decisions it had made, and there was a reason

for this.

[3:45 p.m.]

The Cultus Lake Park is unique in the province, aside from the

Vancouver park board. I would say it is unique in that no one lives

within the Vancouver park board, but there are a lot of people who live

in Cultus Lake Park. In the early days, Cultus Lake served informally as

a campground for the people of Chilliwack, so when the Cultus Lake Park

Act was created in 1932, it simply entrenched that practice into law.

The parkland became the property of the city of Chilliwack.

It’s more complex than that. There’s a further legal wrinkle in

that the city of Chilliwack does not own the parkland in fee simple. It

holds it as a beneficial trust for the benefit of those who enjoy the

park. This means it technically owns the land, but it has no influence

on its governance. This is a very odd situation, but it gets more

complicated yet.

Because the city of Chilliwack owns the land in trust, no resident

of Cultus Lake Park owns their own land. They lease lots for periods of

21 years from the park board. Because the Soowahlie First Nation may

have a claim to that land, the province will not make any material

change, such as providing ownership of the land to its residents,

because that might jeopardize the possibility of satisfying a treaty

claim by the Soowahlie. So it’s a very complicated legal situation, and

right now, it is sort of stuck in neutral.

Further, because the land technically belonged to Chilliwack when

the act was written, it meant that of the seven commissioners, five

would be elected by the people of Chilliwack and only two by the

residents of Cultus Lake. This was appropriate in 1932, because hardly

anybody lived in Cultus Lake. But over the years, Cultus Lake began to

grow, and there are some 1,600 people who live there now, and still,

five of seven commissioners were elected by the people of

Chilliwack.

Well, you can see that would cause problems. It was a basic

democratic accountability problem. The majority of commissioners could,

if they wanted, ignore the wishes of the people they actually served,

because they were representing the interests of Chilliwack, which

elected them, rather than the desires of the residents of Cultus Lake.

The people of Cultus Lake certainly felt this was exactly what was

happening. They felt ignored. Their wishes were not reflected on the

board, but they had no way to eject the commissioners, at election time,

who they felt were not serving them.

I began to lobby the government soon after I was elected to

resolve this basic problem of democratic accountability. I appeared

before Chilliwack city council to appeal to them, to support a change,

and they graciously did so. Happily, in 2015, our government came

through with legislation to reduce the size of the board to five

commissioners, which is more reasonable for an area of that size, and to

make the majority of them, three commissioners, elected by the residents

of Cultus Lake.

Therefore, the interests of the residents of Cultus Lake were

aligned with the interests of the commissioners, who would be

accountable to them, and the control of governance of Cultus Lake Park

Board passed from the city of Chilliwack to those who lived in Cultus

Lake. I must say, this small change affected a dramatic change in

accountability, and it really fixed a lot of problems at Cultus Lake

Park.

The election that followed in 2015 saw broad change in the board,

and there was general local satisfaction with the change. It was really

a lesson to me as a politician that democracy really works well when the

accountability processes are aligned with the people they

serve.

But there are still problems. Because Cultus Lake is growing, it

has a growing and developing natural spirit. I would say a spirit of

independence. It wants freedom to make its own decisions. It wants to

govern itself, as any community wants. But the Cultus Lake Park Act of

1932 gave very little freedom in that regard. It’s just a park board,

just like the park board of Vancouver.

When the people of Cultus Lake wanted more of a municipality, like

any other community in B.C…. For example, the board lacked the power to

do building inspections. They had to partner with the Fraser Valley

regional district if they wanted to do these kinds of things. Before the

change on the board in 2015, there had been a lot of friction between

the regional district and the park board over this feeling of

independence. They didn’t want to rely on the Fraser Valley regional

district. They wanted to be able to do it themselves.

I gave different advice to the people of Cultus Lake that I like

to think was accepted. It’s my philosophy, as a servant of the people….

I want to get them to where they want to go.

I said to the people of Cultus Lake: “If you want to one day

become your own entity, then this is how to do it.” I said this at a

couple of public meetings. “This is a process of evolution over time, so

be patient. Build your community, using all of the tools that are

available to you so that over time, Cultus Lake becomes a municipality

in all but name.” And some day maybe ten, maybe 15 years from now, after

all the decisions are made and all the processes are in place, all we

need to do is change the name of the Cultus Lake Park to the village of

Cultus Lake, or whatever they want to change it to.

[3:50 p.m.]

To their credit, the new board at Cultus Lake began to actively

cooperate with the regional district, which has all the powers of the

municipality and can exercise them on behalf of Cultus Lake. Today, for

example, the Fraser Valley regional district has applied for

infrastructure funds, as I mentioned, for a wastewater treatment system

for Cultus Lake Park Board. Thus, through this new attitude of

cooperation, they are building their community. Together, I think

they’re doing a great job.

A few years ago the then chair of the park board, Dave Renwick,

and I went to see the minister a couple of times to ask for further

changes to the Cultus Lake Park Act of 1932. While he was amenable to

it, officials had some problems with it. They felt that limited changes

were possible, but the changes would require