British Columbia Hansard — 20150312pm Hansard v21n10

20150312pm-Hansard-v21n10

British Columbia — Debates (Hansard)

Fourth Session, 40th Parliament OFFICIAL REPORT OF DEBATES OF THE LEGISLATIVE ASSEMBLY (HANSARD) THE HONOURABLE LINDA REID, SPEAKER ISSN 0709- 1281 (Print) ISSN 1499-2175 (Online) Th ursday, March 12, 2015 Aft ernoon Sitting Volume 21, Number 10

PROVINCE OF BRITISH COLUMBIA (Entered Confederation July 20, 1871) LIEUTENANT-GOVERNOR Her Honour the Honourable Judith Guichon, OBC Fourth Session, 40th Parliament SPEAKER OF THE LEGISLATIVE ASSEMBLY Honourable Linda Reid EXECUTIVE COUNCIL Premier and President of the Executive Council .............................................................................................................. Hon. Christy Clark Deputy Premier and Minister of Natural Gas Development and Minister Responsible for Housing ......................Hon.

Rich Coleman Minister of Aboriginal Relations and Reconciliation ......................................................................................................... Hon. John Rustad Minister of Advanced Education ............................................................................................................................... Hon. Andrew Wilkinson Minister of Agriculture ........................................................................................................................................................ Hon.

Norm Letnick Minister of Children and Family Development ....................................................................................................... Hon. Stephanie Cadieux Minister of Community, Sport and Cultural Development ........................................................................................... Hon. Coralee Oakes Minister of Education ..................................................................................................................................................... Hon.

Peter Fassbender Minister of Energy and Mines and Minister Responsible for Core Review .....................................................................Hon. Bill Bennett Minister of Environment ..........................................................................................................................................................Hon. Mary Polak Minister of Finance .................................................................................................................................................. Hon.

Michael de Jong, QC Minister of Forests, Lands and Natural Resource Operations......................................................................................Hon. Steve Th omson Minister of Health ............................................................................................................................................................... Hon. Dr. Terry Lake Minister of International Trade and Minister Responsible for Asia Pacifi c Strategy and Multiculturalism ..................Hon.

Teresa Wat Minister of Jobs, Tourism and Skills Training and Minister Responsible for Labour ...................................................Hon. Shirley Bond Minister of State for Tourism and Small Business ....................................................................................................Hon. Naomi Y amamoto Minister of Justice ...............................................................................................................................................................Hon.

Suzanne Anton Minister of Social Development and Social Innovation..............................................................................................Hon. Michelle Stilwell Minister of Technology, Innovation and Citizens' Services ................................................................................................ Hon. Amrik Virk Minister of Transportation and Infrastructure ......................................................................................................................Hon.

Todd Stone LEGISLATIVE ASSEMBLY Leader of the Offi cial Opposition ...................................................................................................................................................John Horgan Deputy Speaker .............................................................................................................................................................................Douglas Horne Assistant Deputy Speaker ...............................................................................................................................................................

Raj Chouhan Deputy Chair, Committee of the Whole ............................................................................................................................................ Pat Pimm Clerk of the Legislative Assembly ................................................................................................................................................... Craig James Deputy Clerk and Clerk of Committees .................................................................................................................................

Kate Ryan-Lloyd Sessional Law Clerk ...................................................................................................................................................Roderick MacArthur, QC Sergeant-at-Arms ................................................................................................................................................................................. Gary Lenz

ALPHABETICAL LIST OF MEMBERS Anton, Hon. Suzanne (BC Liberal) .............................. Vancouver-Fraserview Ashton, Dan (BC Liberal).....................................................................Penticton Austin, Robin (NDP) ................................................................................ Skeena Bains, Harry (NDP) ....................................................................Surrey-Newton Barnett, Donna (BC Liberal) ............................................... Cariboo-Chilcotin Bennett, Hon.

Bill (BC Liberal) ...................................................Kootenay East Bernier, Mike (BC Liberal) ................................................... Peace River South Bing, Dr. Doug (BC Liberal) ................................ Maple Ridge–Pitt Meadows Bond, Hon. Shirley (BC Liberal) ........................... Prince George–Valemount Cadieux, Hon. Stephanie (BC Liberal) ................................Surrey-Cloverdale Chandra Herbert, Spencer (NDP) .................................Vancouver–West End Chouhan, Raj (NDP) ...........................................................

Burnaby-Edmonds Clark, Hon. Christy (BC Liberal) ........................................ Westside-Kelowna Coleman, Hon. Rich (BC Liberal) ...........................Fort Langley–Aldergrove Conroy, Katrine (NDP) .............................................................. Kootenay West Corrigan, Kathy (NDP) ..................................................... Burnaby–Deer Lake Dalton, Marc (Ind.) ......................................................... Maple Ridge–Mission Darcy, Judy (NDP) ..................................................................New Westminster de Jong, Hon.

Michael, QC (BC Liberal) .............................. Abbotsford West Dix, Adrian (NDP)............................................................Vancouver-Kingsway Donaldson, Doug (NDP) ......................................................................... Stikine Eby, David (NDP) ..........................................................Vancouver–Point Grey Elmore, Mable (NDP) ................................................... Vancouver-Kensington Farnworth, Mike (NDP) ............................................................ Port Coquitlam Fassbender, Hon.

Peter (BC Liberal) ................................... Surrey-Fleetwood Fleming, Rob (NDP) .......................................................... Victoria–Swan Lake Foster, Eric (BC Liberal) .......................................................Vernon-Monashee Fraser, Scott (NDP) ............................................................Alberni–Pacifi c Rim Gibson, Simon (BC Liberal) ............................................. Abbotsford-Mission Hamilton, Wm.

Scott (BC Liberal) .................................................Delta North Hammell, Sue (NDP) .................................................... Surrey–Green Timbers Heyman, George (NDP) .................................................... Vancouver-Fairview Hogg, Gordon (BC Liberal) ............................................... Surrey–White Rock Holman, Gary (NDP) .......................................Saanich North and the Islands Horgan, John (NDP) .......................................................................

Juan de Fuca Horne, Douglas (BC Liberal) ..............................Coquitlam–Burke Mountain Hunt, Marvin (BC Liberal) ....................................................Surrey-Panorama Huntington, Vicki (Ind.) ..................................................................Delta South James, Carole (NDP) .........................................................Victoria–Beacon Hill Karagianis, Maurine (NDP) ........................................Esquimalt–Royal Roads Krog, Leonard Eugene (NDP) .............................................................

Nanaimo Kwan, Jenny Wai Ching (NDP) ........................... Vancouver–Mount Pleasant Kyllo, Greg (BC Liberal) ........................................................................ Shuswap Lake, Hon. Dr. Terry (BC Liberal) ....................Kamloops–North Th ompson Larson, Linda (BC Liberal) .........................................Boundary-Similkameen Lee, Richard T. (BC Liberal) ......................................................Burnaby North Letnick, Hon.

Norm (BC Liberal) ..............................Kelowna–Lake Country Macdonald, Norm (NDP) ....................................Columbia River–Revelstoke McRae, Don (BC Liberal) ............................................................ Comox Valley Martin, John (BC Liberal) ..................................................................Chilliwack Morris, Mike (BC Liberal) ..................................... Prince George–Mackenzie Mungall, Michelle (NDP) ..........................................................Nelson-Creston Oakes, Hon.

Coralee (BC Liberal) .............................................Cariboo North Pimm, Pat (BC Liberal) .........................................................Peace River North Plecas, Dr. Darryl (BC Liberal) .............................................Abbotsford South Polak, Hon. Mary (BC Liberal) .............................................................. Langley Popham, Lana (NDP) ...................................................................Saanich South Ralston, Bruce (NDP) ................................................................ Surrey-Whalley Reid, Hon.

Linda (BC Liberal) ..................................................Richmond East Reimer, Linda (BC Liberal) ........................................ Port Moody–Coquitlam Rice, Jennifer (NDP) ........................................................................North Coast Robinson, Selina (NDP) .............................................Coquitlam-Maillardville Routley, Bill (NDP) .................................................................. Cowichan Valley Routley, Doug (NDP) ............................................Nanaimo–North Cowichan Rustad, Hon.

John (BC Liberal) ................................................ Nechako Lakes Shin, Jane Jae Kyung (NDP) ...............................................Burnaby-Lougheed Simons, Nicholas (NDP) ................................... Powell River–Sunshine Coast Simpson, Shane (NDP) ..................................................... Vancouver-Hastings Stilwell, Hon. Michelle (BC Liberal)............................... Parksville-Qualicum Stilwell, Dr. Moira (BC Liberal) ........................................ Vancouver-Langara Stone, Hon. Todd (BC Liberal) .........................

Kamloops–South Th ompson Sturdy, Jordan (BC Liberal) ..................................West Vancouver–Sea to Sky Sullivan, Sam (BC Liberal) ...........................................Vancouver–False Creek Sultan, Ralph (BC Liberal) ..................................... West Vancouver–Capilano Tegart, Jackie (BC Liberal) ............................................................Fraser-Nicola Th omson, Hon. Steve (BC Liberal) .......................................Kelowna-Mission Th ornthwaite, Jane (BC Liberal) ..........................

North Vancouver–Seymour Th roness, Laurie (BC Liberal).................................................Chilliwack-Hope Trevena, Claire (NDP) .................................................................... North Island Virk, Hon. Amrik (BC Liberal) ............................................. Surrey-Tynehead Wat, Hon. Teresa (BC Liberal) .............................................. Richmond Centre Weaver, Dr. Andrew (Ind.) .......................................... Oak Bay–Gordon Head Wilkinson, Hon. Andrew (BC Liberal) ........................ Vancouver-Quilchena Y amamoto, Hon.

Naomi (BC Liberal) ................ North Vancouver–Lonsdale Y ap, John (BC Liberal) ......................................................Richmond-Steveston LIST OF MEMBERS BY RIDING Abbotsford-Mission ......................................................................Simon Gibson Abbotsford South ..................................................................... Dr. Darryl Plecas Abbotsford West ...................................................... Hon. Michael de Jong, QC Alberni–Pacifi c Rim ..........................................................................

Scott Fraser Boundary-Similkameen ................................................................ Linda Larson Burnaby–Deer Lake ................................................................... Kathy Corrigan Burnaby-Edmonds ..........................................................................Raj Chouhan Burnaby-Lougheed .............................................................Jane Jae Kyung Shin Burnaby North .............................................................................. Richard T.

Lee Cariboo-Chilcotin ........................................................................Donna Barnett Cariboo North .................................................................... Hon. Coralee Oakes Chilliwack ......................................................................................... John Martin Chilliwack-Hope ....................................................................... Laurie Th roness Columbia River–Revelstoke ..................................................

Norm Macdonald Comox Valley.....................................................................................Don McRae Coquitlam–Burke Mountain .....................................................Douglas Horne Coquitlam-Maillardville........................................................... Selina Robinson Cowichan Valley ................................................................................ Bill Routley Delta North .........................................................................Wm.

Scott Hamilton Delta South...............................................................................Vicki Huntington Esquimalt–Royal Roads .....................................................Maurine Karagianis Fort Langley–Aldergrove ...................................................Hon. Rich Coleman Fraser-Nicola.................................................................................... Jackie Tegart Juan de Fuca .....................................................................................John Horgan Kamloops–North Th ompson ............................................ Hon. Dr.

Terry Lake Kamloops–South Th ompson ..................................................Hon. Todd Stone Kelowna–Lake Country ..................................................... Hon. Norm Letnick Kelowna-Mission .............................................................. Hon. Steve Th omson Kootenay East .......................................................................... Hon. Bill Bennett Kootenay West ............................................................................ Katrine Conroy Langley.......................................................................................Hon.

Mary Polak Maple Ridge–Mission ..................................................................... Marc Dalton Maple Ridge–Pitt Meadows ........................................................ Dr. Doug Bing Nanaimo ........................................................................... Leonard Eugene Krog Nanaimo–North Cowichan ......................................................... Doug Routley Nechako Lakes ........................................................................ Hon.

John Rustad Nelson-Creston ........................................................................Michelle Mungall New Westminster ............................................................................... Judy Darcy North Coast......................................................................................Jennifer Rice North Island .................................................................................. Claire Trevena North Vancouver–Lonsdale ........................................Hon.

Naomi Y amamoto North Vancouver–Seymour ..................................................Jane Th ornthwaite Oak Bay–Gordon Head ...................................................... Dr. Andrew Weaver Parksville-Qualicum .......................................................Hon. Michelle Stilwell Peace River North ................................................................................ Pat Pimm Peace River South ............................................................................Mike Bernier Penticton............................................................................................

Dan Ashton Port Coquitlam ..........................................................................Mike Farnworth Port Moody–Coquitlam ................................................................Linda Reimer Powell River–Sunshine Coast ................................................. Nicholas Simons Prince George–Mackenzie ............................................................. Mike Morris Prince George–Valemount ................................................... Hon. Shirley Bond Richmond Centre ......................................................................Hon.

Teresa Wat Richmond East ..........................................................................Hon. Linda Reid Richmond-Steveston ..............................................................................John Y ap Saanich North and the Islands .................................................... Gary Holman Saanich South ................................................................................

Lana Popham Shuswap ................................................................................................Greg Kyllo Skeena .............................................................................................. Robin Austin Stikine ....................................................................................... Doug Donaldson Surrey-Cloverdale ....................................................... Hon. Stephanie Cadieux Surrey-Fleetwood ........................................................... Hon.

Peter Fassbender Surrey–Green Timbers .................................................................. Sue Hammell Surrey-Newton ................................................................................. Harry Bains Surrey-Panorama ........................................................................... Marvin Hunt Surrey-Tynehead ......................................................................Hon. Amrik Virk Surrey-Whalley..............................................................................

Bruce Ralston Surrey–White Rock ....................................................................... Gordon Hogg Vancouver-Fairview ..................................................................George Heyman Vancouver–False Creek ................................................................... Sam Sullivan Vancouver-Fraserview ......................................................Hon.

Suzanne Anton Vancouver-Hastings ....................................................................Shane Simpson Vancouver-Kensington .................................................................Mable Elmore Vancouver-Kingsway..........................................................................Adrian Dix Vancouver-Langara .................................................................Dr. Moira Stilwell Vancouver–Mount Pleasant .........................................

Jenny Wai Ching Kwan Vancouver–Point Grey .........................................................................David Eby Vancouver-Quilchena ................................................ Hon. Andrew Wilkinson Vancouver–West End ...............................................

Spencer Chandra Herbert Vernon-Monashee ...............................................................................Eric Foster Victoria–Beacon Hill .......................................................................Carole James Victoria–Swan Lake.........................................................................Rob Fleming West Vancouver–Capilano ............................................................. Ralph Sultan West Vancouver–Sea to Sky ..........................................................Jordan Sturdy Westside-Kelowna ................................................................

Hon. Christy Clark Party Standings: BC Liberal 48; New Democratic 34; Independent 3

CONTENTS Th ursday, March 12, 2015 Aft ernoon Sitting Page Routine Business Introduction and First Reading of Bills ................................................................................................................................ 6717 Bill M210 — Open Government Act, 2015 D. Routley Orders of the Day Committee of the Whole House ............................................................................................................................................ 6717 Bill 7 — Private Training Act (continued) K. Corrigan Hon. A.

Wilkinson Report and Th ird Reading of Bills ......................................................................................................................................... 6728 Bill 7 — Private Training Act Committee of the Whole House ............................................................................................................................................ 6728 Bill 6 — Justice Statutes Amendment Act, 2015 Hon. S. Anton L.

Krog Reporting of Bills ..................................................................................................................................................................... 6744 Bill 6 — Justice Statutes Amendment Act, 2015 Th ird Reading of Bills ......................................................................................................... .................................................... 6744 Bill 6 — Justice Statutes Amendment Act, 2015 Proceedings in the Douglas Fir Room Committee of Supply .............................................................................................................................................................. 6744 Estimates: Ministry of International Trade (continued) B.

Ralston Hon. T. Wat

THURSDAY , MARCH 12, 2015 Th e House met at 1:32 p.m. [Madame Speaker in the chair.] Routine Business Introduction and First Reading of Bills BILL M210 — OPEN GOVERNMENT ACT, 2015 D. Routley presented a bill intituled Open Government Act, 2015. D. Routley: I am pleased to introduce the Open Government Act. Th is is the second time I have brought forward a bill to improve British Columbians’ access to information and provide much-needed transparency and accountability from this government.

Th is bill creates a positive duty to document govern- ment decisions and actions in conjunction with the in- appropriate destruction of documents, and government’s failure to create records of its activities and policies as a threat to good governance and a functioning, well-in- formed democracy.

Inadequate record management and archiving over the past decade has, as the former Information Commissioner David Loukidelis said, “put the province’s historical record at risk. ” Th is bill requires that key government decisions be documented and maintained for easy access to the public — in particular, when records relate to an investigation — and makes disposal of transitory records reviewable by the Information Commissioner. Secondly, this bill calls for routine disclosure of exec- utive calendars.

The Information Commissioner has identifi ed calendar requests as a signifi cant cause of this government’s inability to meet its legislated time limits and recommended proactive disclosure, stating this one change would result in signifi cant administrative effi cien- cies that would reduce pressure on staff . But the govern- ment has not seen fi t to enact this recommendation from the Information Commissioner. Th is bill calls for the executive council members and senior staff to disclose their calendars on a monthly basis.

Th is bill also brings under purview of the Freedom of Information and Protection of Privacy Act subsidiaries and corporations of public bodies. As the government continues to outsource services, this change allows for information in the custody of these parties that are ful- fi lling public sector functions to be available to the public. Lastly, the bill strengthens public interest provisions, ensuring that public interest truly is paramount and also makes changes to fees associated with FOI requests to make fees more reasonable and expand general public access to information.

This bill follows many of the recommendations made by the Office of the Information and Privacy Commissioner in her 2010 report. I move that this bill be placed on the orders of the day for second reading at the next sitting aft er today. [1335] Madame Speaker: Hon. Members, two questions. First is fi rst reading. Motion approved. Madame Speaker: Second, referral to orders of the day. Bill M210, Open Government Act, 2015, introduced, read a fi rst time and ordered to be placed on orders of the day for second reading at the next sitting of the House aft er today. Orders of the Day Hon. J.

Rustad: In this House I call continued com- mittee stage of Bill 7, and in Committee A, the estimates of the Ministry of International Trade. Committee of the Whole House BILL 7 — PRIV ATE TRAINING ACT (continued) Th e House in Committee of the Whole (Section

B) on Bill 7; D. Horne in the chair. Th e committee met at 1:38 p.m.

Section 25 approved. On

section 26. K. Corrigan: I did have a question about

section 26 of the Private Training Act, which deals with private train- ing colleges or institutes and some language schools. Th is

section has to do with repayment of money received by a claimant, and it says: “If money is paid from the fund to a claimant, the trustee may require the claimant to pay to the fund any money received by the claimant from another source in respect to the claim, up to the amount paid from the fund to the claimant. ” I’m wondering if the minister could explain. Is this stu- dent loans or that kind of student grants? Is it that kind of thing? Or what other things could…? Hon. A. Wilkinson: Th is, like so many other circum- stances in life, refers to a mechanism to avoid double 6717

British Columbia Debates6718 Thursday, March 12, 2015 recovery by a claimant. We see this in many other judi- cial-related issues. [1340] In this circumstance, it’s in the unlikely circumstance that the individual has some kind of insurance policy that would pay them in addition to the funds they receive from the tuition protection fund, which, as I say, would amount to double recovery. K. Corrigan: Just to be clear. If it was a travelling stu- dent…. Many of the students that will be covered by this act could be travelling from either other provinces or other countries.

If they had an insurance policy covering that travel, presumably that insurance policy could cover things like cancellation of travel and so on. I’m not clear. Would that be that they had insurance that was particularly related to the cost of tuition? Or how would that be teased out and fi gured out? Hon. A. Wilkinson: Th is is solely related to double re- covery of tuition. As we say, it’s an unlikely circumstance, but one can contemplate that there could be an insurance policy that a student had purchased that would amount to them being compensated in both insurance and from the tuition protection fund.

Th is provides a statutory basis for recovery in those circumstances. K. Corrigan: Th e trustee, then, has a cause of action against the claimant for the amount unpaid if the claim- ant fails to comply with subsection (1). Th ere are a couple of sections which create a cause of ac- tion. But is there any cause of action that a student has ac- cess to with regard to anything that happens under this act? Hon. A. Wilkinson: Th e design of the statute is such that students can make a claim for tuition in a simple and expedited fashion by making their claim in written format to the trustee.

In addition to that, the student would have a cause of action, conceivably, for breach of contract or deceit or fraud or any of a number of other reasons. Th at could en- compass their entire experience and their entire expendi- tures. Th at would be up to small claims or, conceivably, superior courts in a class action. But the statutory frame- work is designed to provide a simple, expedited process for claims against the tuition protection fund. K. Corrigan: I’ve got just a little scenario.

If a student was to fi le a claim against the fund and was not success- ful and then also fi led a small claims action and was suc- cessful in the small claims action and the judge found…. I mean, this is a scenario. I’m just trying to think of things that could happen. If the judge found in the small claims action that they should be reimbursed for their tuition, would the fund have any claim against the student who got that money in small claims court under this act? Hon. A. Wilkinson: In the event that the student had been paid out by the trustee under the tuition protec- tion fund, that would invoke

section 26(1). Th e prem- ise would be that to avoid double recovery, the student would have the obligation to pay back the tuition protec- tion fund, under

section 26(2), to the extent that they had recovered elsewhere for the same claim. In other words, this is designed to protect the fund from a situation where the student is eff ectively being paid twice for a single claim.

Section 26 approved. On

section 27. [1345] K. Corrigan:

Section 27 enables the trustee to essen- tially recover money or get repayment of money from an institution aft er a payment has been made out from the student tuition protection fund. In other words, a student has been successful. Th e trustee can then go back and try to recover the money that was paid out of the fund from the institution that was involved. First of all, I’m wondering what is expected.

It says it can “require the institution in relation to which the pay- ment was made to pay to the fund, in the manner and at the times prescribed by regulation of the Lieutenant Governor in Council, the amount of the payment made from the fund. ” Is there some idea of what those regulations would look like? Hon. A. Wilkinson: Th e regulations contemplated in

section 27(1)(

a) are to deal with issues such as the time frame for required repayment. For instance, it might be three months. Th at will have to be developed as the regu- lations are developed. And “in the manner” obviously refers to the process of making a claim — whether it’s delivery of the demand or whether it’s deemed to be a demand delivered by e-mail, that sort of thing. K. Corrigan: Subsection (

b) says that the trustee can get the fund to compensate by realizing “the security held under this Act in relation to the institution, up to the amount paid from the fund. ” What kind of levels are we talking about in terms of security? Th is is a security that’s up front when the institution is registered, correct? I’m just trying to get a sense of the magnitude. I know it will vary but just some kind of idea. Hon. A. Wilkinson: Th e amount of the security on registration, as the member points out, will be pro- portionate to the revenue stream of the organization — which, of course, is related to the enrolment and the tuition levels. Th is is, of course, designed to man- age risk.

British Columbia DebatesThursday, March 12, 2015 6719 Clearly,

section 27 is designed to create the neces- sary vehicles to recover from the institution. First is a demand, in

section 27(1)(a). Second, if that’s obviously not working out, then 27(1)(

b) provides for the security to be called upon. Th en lastly is the possibility of a law- suit, in sub 27(2). K. Corrigan: Maybe just by way of example…. I don’t want to spend a lot of time on this, but if the information is readily available…. For some of the large private train- ing institutions, what kind of level of security would they have? I mean, are we talking hundreds of thousands of dollars, millions of dollars, a few thousand dollars? I’m not going to quote the minister on this. I’m just trying to get a sense. [1350] Hon. A. Wilkinson: Th e amount of security to be posted will be risk-adjusted.

An institution with a strong fi nancial basis that’s been in operation for a lengthy per- iod of time will have a lower adjusted risk and pay a low- er security. Security has not been required to date. It will be required going forward. As I say, the quantum of the security fund for an individual institution will vary de- pending on their risk profi le, their enrolment, their rev- enue and so forth. K. Corrigan: I have another question about another subsection.

Subsection (3) provides that if the trustee is seeking repayment to the fund and there is an institution that has been operated through an “individual, corpora- tion, fi rm, syndicate or association, or any combination of them under common control or direction, ” they are jointly and separately liable. Of course, that means that every single one of those individuals, including an individual who might be on a board of directors…. I’m just trying to get the sense of the liability that somebody is taking on.

If there was an in- dividual who was on the board of directors of a corpora- tion, they could be liable for the whole of the claim. Th at can be not just the claim for tuition but also the things that were talked about under

section 25 — the costs of investigating and processing claims against the fund or “recovering money paid in respect of an approved claim, including actual legal costs. ” Just to be clear, maybe the minister could confi rm that as little as one individual sitting on a board of directors could be liable for the claim, including all of those extra costs, like legal costs. Is that correct? Hon. A. Wilkinson: Th e statute refers to the operat- ing entities, whether it be individuals, corporations, fi rms, syndicates, associations or any combination thereof — the premise being here that the ownership pool operating the institution is liable for the payments that are required under

section 27(1). If a school is created that turns out to have no assets but the investor owner-operators be- hind it do have assets, then this would be designed to at- tach their assets. K. Corrigan: Of course, joint and several liability means that even if nobody else has assets, any one per- son, say, on a board — or a director, I guess…. Each and every one of those individuals would be fully liable if there’s nobody else that the liability can be shared among. Is that correct? [1355] Hon. A. Wilkinson: Th is is properly a legal question.

But the member opposite has the same understanding of joint and several liability that I have, the modern term be- ing “jointly and separately liable, ” so that any one of the debtors can be held accountable for the sum owed by all of them. Th at, of course, provides for that debtor who is obliged to pay to then make their own claim against the other debtors. K. Corrigan: Th at was my understanding, and thank you for the reminder about the change in the term. It’s habit from many years ago. With regard to subsection (b), I’m wondering what the necessity of subsection (

b) is. I’m not sure what that adds and what is diff erent in subsection (

b) that is not covered by the joint and separate liability under subsection (a). Hon. A. Wilkinson: Th is is part of a modern draft ing strategy, I gather, to make sure that a defendant doesn’t come along later and say: “Well, the phrasing of the sec- tion and of this act does not actually invoke the process of this act to this particular recovery from” — as it says — “any or all of them. ” My understanding is that this a draft ing tool used to avoid a slippery defence. K. Corrigan: Th at’s interesting. Th ank you to the min- ister.

Th en just to be clear, under subsection (6) it says a “payment under this section” — in other words, a pay- ment back into the fund by the institution that is subject to the payment — “is in addition to any payment made under

section 22, ” which deals with certifi ed institution payments to the fund. Is that something that’s existed before? Is it that insti- tutions are required to pay into the fund and then when there’s a payment out of the fund, the fund will cover the student but the institution nevertheless will be required to pay back the amount of tuition, even though they’ve paid into the fund, and add on top of that any other costs, like legal costs? Is that new? Hon. A. Wilkinson: Similar provisions do exist now. Th is is obviously designed for a circumstance where there is a major failure of an institution and a substantial claim

British Columbia Debates6720 Thursday, March 12, 2015 against the fund.

Section 27(1) specifi cally makes it dis- cretionary on the part of the trustee. One can imagine if that there’s a claim against the tu- ition protection fund for a change in the size of a class- room that is considered to be a signifi cant aspect and it ends up in a $200 payout, the trustee is almost certainly not going to pursue that particular institution for that, because the cost of adjudicating and moving that claim through against the institution for recovery would not be worth the bother.

However, if a particular institu- tion incurs $200,000 in costs, then it’s only fair that the other compliant institutions are not asked to pick that up through a mutual defence fund. Th is provides for the trustee to protect the fund, which is, at the end of the day, designed to protect students. Th is is a way of replenishing the fund from a bad actor. K. Corrigan: I’m interested to hear that that existed before. So it’s not really an insurance fund.

It’s an insur- ance fund to the degree it provides insurance that the students can be made whole — with regard to their tu- ition, not other costs — but it’s certainly not as far as the institutions are concerned. [1400] Th at’s interesting. It’s interesting. I mean, I’m thinking of, for example, a lawyer under the Law Society — which is diff erent; diff erent types of obligations. If a lawyer is paying their fees every month and part of that goes into a fund to pay out claims, big lawsuits against that law- yer, does the minister know…?

I’m just trying to get the sense of whether this is a usual or unusual type of setup. Would the Law Society then be able to claim against a lawyer that had successfully been sued, and then the claim had been made against the fund for the Law Society? I’m not sure. Hon. A. Wilkinson: I know we’re getting somewhat off topic here. Th is is not an insurance fund. Th e Insurance Act is not invoked. Th e various rights that arise in in- surance, such as subrogation and rights of relief against forfeiture, are not invoked here.

Th is is a statutory com- pensation fund that is solely described within the terms of this statute. K. Corrigan: It is, but I guess the challenge I have with this

section is that it doesn’t have the protections of the court in any way. If an institution had been paying into the fund — and I’m certainly not suggesting that we don’t want to protect against the bad apples or bad actors that the minister referred to — and then there is a major de- fault…. Th ere can be a claim, and it’s up to the trustee to make the decision about whether or not that person has to pay back or how much that person or institution has to pay back. I don’t believe there’s any…. Is there any recourse in terms of appealing that?

I mean, especially if the minis- ter is saying that we’re talking about big defaults…. We’re talking, potentially, claims that could be hundreds of thousands of dollars. Th ere’s no recourse. Is that correct? Hon. A. Wilkinson: The statute does not provide within its framework an appeal process for the discre- tionary decision of the trustee in

section 27(1), but one can readily assume that if an institution feels that it’s be- ing badly treated or disagrees with the valuation or the necessity for this claim against the institution, they could simply not pay. Th eir security may be realized at that point, but under

section 27(2) they would then be in a position where they would be the defendant in a claim by the trustee in a su- perior court, and the judge would be left to decide on the merits of the claim by the trustee. K. Corrigan: I wanted to ask specifi cally about — I don’t think I asked this — joint and separate liability. Was that principle included in the previous legislation? Th e Chair: I’ll recognize the minister even though he’s not in his place, given the fact that his place is cur- rently taken. Hon. A. Virk: I seek leave to make an introduction. Leave granted. Introductions by Members Hon. A.

Virk: It gives me great pleasure to make an introduction. We have visiting the precinct today 33 grade 5 students from Surrey Christian elementary with their teacher Mrs. Kay and all their dedicated parents who are with them up there. Th ey just spent the last 15 or 20 minutes in my offi ce asking wonderful questions. Th ese are future leaders in Canada and perhaps future parliamentarians. Would the House please make them welcome. Debate Continued Hon. A. Wilkinson: Th e provision for joint and sep- arate liability found in this

section is not in the existing regime. [1405] K. Corrigan: I’m wondering if…. Was there any feed- back from stakeholders on this particular point? If there was, what was that feedback? Hon. A. Wilkinson: Th is particular section, provid- ing for recovery of funds by the trustee against the in- stitutions, is part of the process of working this out with the legislative counsel in the Attorney General’s offi ce.

British Columbia DebatesThursday, March 12, 2015 6721 Although institutions may be aware of it, they are not actually consulted about the process of recovering from them in the event of a default.

Section 27 approved. On

section 28. K. Corrigan:

Section 28 deals with inspectors and says the registrar “may appoint persons or a class of per- sons as inspectors” and then “may impose restrictions on the powers and duties that an inspector may exercise or perform under this Act. ” My question is: do we have any sense…? We talked about this before as part of other dis- cussion. First of all, how many inspectors are there now? Is it expected under the act that there will be the same or more inspectors once this act comes into place? Hon. A.

Wilkinson: I believe this came up two days ago, when the current complement of six inspectors was described and the concept that that number will continue. Of course, it will be risk-adjusted over time. If there turns out to be more work, there’ll be a need for more inspect- ors. Conversely, if things are going very well, then we would probably shrink the number of inspectors. K. Corrigan: I do recall that. Th ank you for reminding me of the number of inspectors. Is it the minister’s con- sideration that the number of inspectors that have been in place to date is suffi cient? Hon. A.

Wilkinson: Th e answer is yes. K. Corrigan: I know there could be some changes under this act about how many institutions will fall under this act, considering that we don’t know yet exactly what type of organizations are going to have to be registered and under what category and also the whole area of lan- guage schools. Th at will be a voluntary registration. I’m wondering, perhaps as a base point: do we know how many institutions are regulated at this time? Hon. A. Wilkinson: Currently there are 325 institu- tions that fall under the current regulatory regime.

Just to clarify a point the member made, registration for lan- guage schools is only voluntary if they are non-desig- nated. K. Corrigan: I appreciate that. But just to be clear, language schools don’t have to be designated unless they want to have the protection for foreign students study- ing and the protections that are associated with that. Is that correct? Hon. A. Wilkinson: As we covered two days ago at some length, language schools are required to be regis- tered and designated if they are to be eligible for the fed- eral student visa program. K.

Corrigan: Just to confi rm also, if they decide they don’t want to be eligible for the student visa program, they can be any size. Th ey don’t fall under the same kind of requirements as a private training institution. Is that correct? Hon. A. Wilkinson: As we’ve noted over the last couple of days, if a language school seeks federal student visa eligibility, they must be designated. Otherwise, they are not required to register.

Section 28 approved. On

section 29. K. Corrigan: An inspector under this act, the Private Training Act, “may conduct an inspection for the follow- ing purposes: (

a) assessing an applicant for a registration certifi cate or designation certifi cate; (

b) determining compliance with (

i) this Act or the regulations, or (ii) the requirements of other government programs prescribed by regulation; (

c) determining whether it is appropriate to suspend or cancel a certifi cate. ” [1410] Th ose sound like reasonable reasons for an inspection. I’m wondering if this is any diff erent than the existing act. Hon. A. Wilkinson: Th e current

section 12 of the PCTIA act is in signifi cantly diff erent wording, but the content is the same as

section 29(

a) and

section 29(c). Of course,

section 29(

b) deals with the new act and new regulations. Th e reference to “requirements of other gov- ernment programs” is primarily directed to the student loan program. Th is is a rewording and modernization and modifi cation of the existing

section to deal with the new regime. K. Corrigan: But at the present time, does the inspect- or have the power to conduct an inspection — whether it’s worded diff erently or not — to determine compliance with the act or the regulations? Does that happen now? Hon. A. Wilkinson: Th at is provided for in

section 12 of the PCTIA act.

Section 29 approved. On

section 30. K. Corrigan:

Section 30 provides for inspection pow- ers. It says: “For the purpose of an inspection, an in- spector may, without a warrant, do any of the following, during business hours…. ” It gives a number of things

British Columbia Debates6722 Thursday, March 12, 2015 that the inspector can do: entering the business prem- ises; inspecting, auditing or examining a record; remove from the premises a record; make a video or audiotape or something digital, I guess; or question a person. Now, can all of these things be done…? “It says: “with- out a warrant…. ” Is there any requirement that there has to be any kind of warning, or could these inspections just be snap inspections? Hon. A. Wilkinson: As the

section provides in the header of subsection 30(1), during business hours these inspections in subsections (

a) through (

g) can be con- ducted without a warrant, for obvious reasons, so that the inspector can arrive and see how many real students there are and what is really going on. K. Corrigan: Th en I see that under subsection (2), the inspector can’t go into “a private residence except with the consent of the occupant or with the authority of a warrant under

section 31. ” So perhaps, just looking ahead to 31, maybe a quick overview of when it is appropriate to go into a private residence for an inspection? Hon. A. Wilkinson: I think the member wisely points to

section 31, which provides a number of parameters for the inspection based on a warrant. It would be up to a justice to issue that warrant only if satisfi ed of the criteria in sections 31(1)(

a) through (c). Th is is obviously in recognition that some schools are home-based businesses. Y et at the same time, one wants to respect the sanctity of the home, and therefore, a war- rant would be required. K. Corrigan: Are the parameters of an inspector in- specting a business markedly diff erent than the param- eters that are under the present act? [1415] Hon. A. Wilkinson: Th e existing act, in

section 12, provides very comparable language. For instance, sub-

section 30(1)(

g) is exactly the same as the former

section 12(2)(f). Th e language has been modernized and clari- fi ed and expanded, to a degre e, to match the new statu- tory framework.

Section 30 approved. On

section 31. K. Corrigan: Th is provides for an inspection under a warrant, and this would be if the inspector wanted to go into somebody’s private home or a business premises.

Subsection 31(1)(b) — without limiting the authority under the Off ence Act, a justice may issue warrants for the purposes of this Act as follows: "on being satisfi ed on evidence on oath or affi rmation that a place is used as a business premises of an institution, the justice may issue a warrant authorizing an inspector to enter the place to conduct an inspection. ” I would assume this would be if the business prem- ises for the institution are separate from the institution’s location itself. I’m just not sure what that

section is en- visioning. Hon. A. Wilkinson: Referring back to

section 30, the entry of the inspector without a warrant only occurs dur- ing business hours. So one can readily imagine that out- side of business hours — for instance, on a weekend — in the event of an insolvency or allegations of fraud or mis- treatment, the inspector may see the need to enter out- side of business hours and, also, as we discussed earlier, in the event that the business is operated out of a private home, to enter a private home with a warrant. Going back to subsection 30(2), the inspector must, of course, either obtain the consent of the occupant or get a warrant under

section 31 to enter a private residence. Clearly, this is designed to provide those comprehen- sive tools in the event that the inspector cannot get the necessary information during business hours from a business premises.

Section 31 approved. On

section 32. K. Corrigan: Th is is division 2, dealing with compli- ance orders and administrative penalties. “If satisfi ed that an institution is contravening or has contravened a provi- sion of ” the Private Training Act “or the regulations, the registrar may order the institution to comply with this Act and the regulations. ” In what kinds of circumstances would it be envisioned that this

section would have to be used? I’m sure there’s a long history, so I’m just trying to get a sense of: complying with what? Providing the appropri- ate programs? Providing the appropriate space? Can I just get a little bit of an overview from the minister? Hon. A. Wilkinson: A couple of examples that I hope will suffi ce. Th ey would include a failure to maintain stu- dent records as required, a failure to maintain instructor records as required, or perhaps a failure to train students on a continuous basis, in the event that the school runs out of steam. K.

Corrigan: Th is is one of the areas dealing with com- pliance orders and administrative penalties that I’ve had quite a bit of feedback on from some of the private train- ing institutions and the language schools. [1420] Th ey’re feeling that there’s a great deal of power with the registrar but with limited procedural fairness. I’m not going to get into all of the concerns, but I just think I

British Columbia DebatesThursday, March 12, 2015 6723 would like to get it on the record that there is a real con- cern in this whole area of compliance orders and admin- istrative penalties. I’m wondering if the minister has anything to say about that. Hon. A. Wilkinson: Of course, under any statutory re- gime, the courts can be called upon to decide whether the statutory authority exists to do anything that is provided for in the act.

Most statutes now that provide for any kind of inspection do provide for compliance regimes and the mechanism that is to be followed by the inspectors and their supervisors as they go about their business. Th is is designed to explicitly lay out the obligations of both the institutions and of the registrar and of the inspectors working for the registrar.

Section 32 approved. On

section 33. K. Corrigan:

Section 33 deals with the determination of administrative penalties and says: “If the registrar is satisfi ed on a balance of probabilities” — in other words, more likely than not — “that an institution has (

a) contravened a provision of this Act or the regulations prescribed by the Lieutenant Governor in Council, or (

b) failed to comply with a compliance order, the registrar may serve the institution with a determination requiring the institution to pay an administrative penalty in the amount and in the manner prescribed by regulation of the Lieutenant Governor in Council. ” Do we know what those administrative penalties are at this point? Hon. A. Wilkinson: It’s helpful in this regard that Ontario has a series of penalties already laid out in its legislation. As we’re developing the regulations around this, we’ll obviously have that as a guide and be in consul- tation with the sector about appropriate levels of penalty.

Now, for example, in Ontario, the breach involving qualifi cations of instructional staff gives rise to a $1,000 penalty. A registrant’s failure to comply with conditions is a $750 penalty. A refusal to provide access to transcripts is a $750 penalty. And there are dozens of others. K. Corrigan: Is there not, under the existing act, the ability to levy administrative penalties? I guess that’s the question. Hon. A. Wilkinson: In the current regime there is no structure that provides for administrative penalties at all. K.

Corrigan: Has the minister, in the preparation of this legislation, consulted with the industry — the career institutes or the language schools — on the fact that (1) there would be administrative penalties and (2) getting a sense of what the magnitude of those penalties would be? Hon. A. Wilkinson: Th e sector has been extensive- ly consulted on this point. In fact, the sector is fi rmly approving the concept of graduated enforcement and compliance through graduated regime, rather than the current regime, which is all or nothing — either suspen- sion of the certifi cate or carrying on business as usual. K.

Corrigan: Well, I’m pleased to hear that, because it certainly hasn’t been the feedback I’ve received from the industry — that anything they suggested about this act was actually included in the act. I’m pleased to hear that the minister has been able to fi nd an exception to what they have said. [1425] With respect to subsection 33(4): “If an administrative penalty is imposed on an institution that is a corporation, an offi cer or a director of the corporation who directed, authorized, assented to, acquiesced in or participated in the contravention is also liable under this

section for the administrative penalty if the corporation fails to pay the administrative penalty in accordance with

section 34. ” Th is would be similar to the joint and separate liability that we talked about previously. I’m wondering why the same type of terminology would not be used — of joint and separate liability. Hon. A. Wilkinson: Th e premise here, of course, is that administrative penalties are limited in scope. Th ey tend to be, at most, in the $1,000 range. Th is provides a mechanism for recovery in the event that the school proves to have no assets or is resistant to payment. Not being of the scope and scale of the tuition protection fund claims, this is thought to be suffi cient.

Section 33 approved. On

section 34. K. Corrigan: Maybe if the minister could just confi rm. My understanding from reading this

section is that it es- sentially says institutions that have had an administra- tive penalty levied against them or imposed against them have 30 days to appeal, depending on what the situation is. Is that correct? Hon. A. Wilkinson: As we can see on the face of this section, it provides for payment of administrative pen- alties within 30 days unless the institution requests a re- consideration under

section 47. If that appellate process is exhausted, then in

section 34(

c) they must pay the ad- ministrative penalty within 30 days aft er a negative deci- sion from the commissioner.

Section 34 approved. On

section 35.

British Columbia Debates6724 Thursday, March 12, 2015 K. Corrigan:

Section 35 provides for enforcement of administrative penalties and says that the penalty “con- stitutes a debt payable to the government. ” Essentially, that sets the framework, then, or sets the table for being able to fi le in Supreme Court — is that correct? — in or- der to enforce that judgment. Is that the purpose of this

section generally? Hon. A. Wilkinson: Th is is more or less standard in terms of government collection of debts, in that

section 35(1) characterizes it and in a statutory basis states it to be a debt payable to government. Th en the collection re- gime arises as if it were a judgment of the Supreme Court of British Columbia.

Section 35 approved. On

section 36. K. Corrigan: Division 3 deals with suspension and cancellations of certifi cate and says: “If the registrar is satisfi ed that a certifi ed institution is contravening or has contravened a provision of this Act or the regulations, the registrar may suspend any or all of the institution’s certifi - cates for a period” considered appropriate. But they may continue to provide a program of instruction. Perhaps the minister can just explain the operation of this section. [1430] Hon. A. Wilkinson: Th e structure of this

section is that students enrolled in a course that is subject to sus- pension can complete that course, but the school can- not enrol the next batch of students. Th at’s in contrast to cancellation of a certifi cate, in which case, the school ceases to exist as an instructional entity on the day of cancellation. Th e idea of suspension is to protect the in- terest of the incumbent students so they can complete their course. K. Corrigan: I’m just trying to get a sense of the oper- ation of the act. Would it be expected that this would be a progressive set of remedies?

Depending on the sever- ity of the case, could the minister foresee that, fi rst, pos- sibly, a compliance order would be sought and then an administrative penalty and possibly, if that didn’t work, suspension and then cancellation? I mean, not necessar- ily, but is that a possibility? Hon. A. Wilkinson: Th e graduated scaled enforce- ment regime starts with a warning and is followed by compliance orders. Th at can lead to an administrative penalty if the compliance orders aren’t followed. If the administrative penalty is insuffi cient, the school can be suspended, as provided in

section 36. Th en if more egre- gious events occur,

section 37 provides for outright can- cellation of their certifi cate. K. Corrigan: In the past there were not administrative penalties, so that

part is new. Is there anything about the suspension? And I guess I’ll ask about the cancellation certifi cate. Is there anything markedly diff erent under the present act as compared to the coming act, the Private Training Act? Hon. A. Wilkinson: Th e provisions for suspension and cancellation are, obviously with some modifi cations, similar to what happened under PCTIA. But the other enforcement opportunities, such as compliance orders and administered penalties, are new.

Section 36 approved. On

section 37. K. Corrigan:

Section 37 deals with cancellation of certifi cates or a certifi cate. It gives the registrar the abil- ity to cancel a certifi cate if the institution is contravening or has contravened a provision of this act or the regula- tions. If they do, they have to give written reasons to the institution and (

b) notice of the cancellation to the stu- dents who are enrolled in the institution on the date of the cancellation. Th ese provisions are essentially the same. Th ere’s noth- ing particularly diff erent. I think the minister has just said that. Th en it says that the institution cannot apply “for a certifi cate during the 12-month period following the date of receipt of the registrar’s decision, and (

b) must immediately return the certifi cate to the registrar. ” Is that 12-month period the same as it has been to date? Hon. A. Wilkinson: Th e answer is yes.

Section 37 approved. On

section 38. K. Corrigan: Division 4, which includes sections 38 up to 43, deals with off ences under the act. I don’t have anything on

section

Section 38 approved. On

section 39. K. Corrigan: Perhaps we should deal with all these sections together. I do have a sort of general question. Perhaps the minister could explain what types of actions would constitute off ences under the act. What types of things are included? [1435] Hon. A. Wilkinson: Division 4, being sections 38 through 43, is the off ences section. It includes reference

British Columbia DebatesThursday, March 12, 2015 6725 to selling credentials, false or misleading representations and so forth. We can itemize them, or they could sim- ply be read. K. Corrigan: Selling credentials. Granting credentials.

Section 39 says: “ An institution must not grant a career training credential on completion of a career training program that is required to be approved under this Act unless the career training program has been approved. ” Th at could be an off ence under this act, to do that. I guess I don’t have to ask for an answer or get confi rma- tion on that. Th e prohibitions on false or misleading representa- tions and on false or misleading information — are these types of off ences similar to what is under the present act? Hon. A.

Wilkinson: Th e existing act provides for a prohibition on conducting a career training operation unless the institution is registered, and a non-accredited institution must not represent itself as being accredited. Th ere’s also an off ence

section dealing with obstructing an inspector. But that is the limit on the off ences under the existing act. As one can see, there are a few more in the new act. Sections 39 to 42 inclusive approved. On

section 43. K. Corrigan:

Section 43 provides some of the other provisions, apart from the ones we’ve talked about — more to do with the process, I guess. It says: “ A person who contravenes any of the following commits an off ence” — not having the certifi cates required to provide career training programs or the designation certifi cate required for some career training institutions. Th at’s interesting, that particular one, 43(1)(b). Is that something new? It seems quite onerous.

I’m not sure I disagree, necessarily, but it does seem quite onerous that if somebody doesn’t have a designation certifi cate, they have committed an off ence under the act and are liable to a fi ne of up to $100,000. Is that new? [1440] Hon. A. Wilkinson: Th is harkens back to

section 3 of the Private Training Act, which provides for certain thresholds above which an institution must be desig- nated. Of course,

section 43(1)(

b) refers to the issue of it being an off ence to conduct an institution as described in

section 3(1)(

a) and/or (

b) without being designated. K. Corrigan: But under the existing act it would be equivalent to accreditation. Is there something in the present act that says that it’s an offence if somebody doesn’t have an accreditation certifi cate if it’s required of them? Is that an off ence under the present act? Hon. A. Wilkinson: Accreditation under the current act is voluntary. Th is is a new provision. K. Corrigan: Fair enough. Good point, Minister. Th ank you for that reminder. If somebody holds themselves out to be accredited under the present act and they’re not, would that pres- ently be considered to be an off ence?

Hon. A. Wilkinson: Th at’s what I referred to about ten minutes ago, under the existing

section 7, which provides that there is an off ence for purporting to be accredited when the institution is not. K. Corrigan: Subsection (3) says: “ A person who com- mits an off ence under this

section is liable to a fi ne of not more than $100 000. ” Is that the same number as in the present act? Hon. A. Wilkinson: Th e answer is yes. K. Corrigan: Subsection (2): “If a corporation com- mits an off ence under this Act, an offi cer or director of the corporation who directed, authorized, assented to, acquiesced in or participated in the off ence commits the same off ence whether or not the corporation has been prosecuted or convicted of the off ence. ” Is that also present in the existing act? Hon. A. Wilkinson: Th e answer is yes.

Section 43 approved. On

section 44. K. Corrigan: I’m wondering if the limitation periods are the same as previously, under this new act? Hon. A. Wilkinson: Th ere were no administrative penalties under the previous act, so there was no applic- able limitation period for that, and there was also no ul- timate limitation period.

Section 44 approved. On

section 45. K. Corrigan:

Section 45 provides for injunctions. Th e Supreme Court can grant an injunction to restrain, re- quire compliance and other matters. What I’m interested in is subsection 45(4)(c), which says: “With respect to considering an interim injunction…the registrar need not establish that irreparable harm will be done if the interim injunction is not issued. ” Is it not a standard requirement when seeking interim injunctions that irreparable harm be established?

British Columbia Debates6726 Thursday, March 12, 2015 Hon. A. Wilkinson: Th e member is probably recalling the jurisprudence in the 1970s — I think the case was American Cyanamid — where these two criteria were laid out, about the balance of convenience and the issue of irreparable harm. Th is subsection 45(4) serves to pro- vide a new regime. [1445] K. Corrigan: Of course that was exactly what I was thinking about.

I guess I would like to bring it forward a few years, past when I went to law school, and ask: is it not the case in British Columbia at this time, general- ly though, subject to a statute that says that irreparable harm does not have to be established…? Is it not stan- dard in the legal fi eld for irreparable harm having to be established in order for there to be an interim injunc- tion granted? Hon. A. Wilkinson: This would require some de- tailed legal argument about the current parameters of the American Cyanamid case and 40 years of jurisprudence since then, including the Supreme Court of Canada.

We’re not in a position to do it today other than to read the

section on its face. K. Corrigan: Th e minister has brought the legisla- tion forward. Surely, there’s an intent and there’s reason behind it. I’m just wondering why it is that this was in- cluded, from the minister’s perspective. Why would the normal test — my understanding of a normal test for granting an interim injunction, which is to establish ir- reparable harm — intentionally be removed in this situa- tion? I’m not asking for a legal discussion. I’m just asking the minister why it was done. Hon. A.

Wilkinson: Th is came as a recommendation from the Attorney General’s capable legal team, given the circumstances that we operate in and the particular sub- ject matter that we’re dealing with here. Sections 45 and 46 approved. On

section 47. K. Corrigan: It’s my understanding from briefi ngs that I received and from reading the act that this

part 5 deal- ing with reconsideration, appeal and review is largely new. I’m wondering if the minister could just give us a few minutes of an outline of what will happen with this

section and why this was included — this

section and the following few sections. Hon. A. Wilkinson: Given that this is a statutory re- gime for a government agency to be involved in making decisions about the sector and that there are a variety of interests involved, it makes sense that there would be provision for reconsideration by the registrar and for an appeal to the commissioner for a review of that decision. Th is, of course, is a due process part of the act,

part 5, which provides for that regime in a fashion which is com- mensurate to the size of the issues at play. Understandably, there could be reputation risk. Th ere could be monetary amounts that are in question. But nonetheless, it calls for a fairly crisp internal tribunal to bring this about, rather than an elaborate process with procedural safeguards of the kinds found in superior courts, so that everybody can get on with their business and get on with their lives. K. Corrigan: Th is

section deals with…. My under- standing is that the registrar can reconsider a refusal to grant a certifi cate, imposition of an administrative pen- alty, suspension of a certifi cate. I can’t recall whether it also…. What are the grounds that there can be a recon- sideration based on? Hon. A. Wilkinson: We can see in

section 47(3) that those are laid out. [1450] K. Corrigan: What about cancellation of a certifi cate? Is that included in this section? Hon. A. Wilkinson: In the event of a cancellation of a certifi cate, the reconsideration step is skipped and it goes straight to an appeal to the commissioner.

Section 47 approved. On

section 48. K. Corrigan: I just want to get it on the record that this whole process of reconsideration is another area that some of the private training institutions expressed con- cern about. Th ere is a concern there, and I just wanted to specifi cally point that out. Sections 48 and 49 approved. On

section 50. K. Corrigan:

Section 50 is the beginning of a division that talks about appeals to commissioners from regis- trar’s decisions. I’m just wondering about…. Maybe a little bit of an overview of this

section about what the expectation is of how oft en there is going to have to be an appeal to a commissioner and who the commis- sioner is going to be. I know it’s in there, but it would probably be helpful and probably shorten the questions I have if we just get a little overview from the minister of what this part envisions.

British Columbia DebatesThursday, March 12, 2015 6727 Hon. A. Wilkinson: Th e commissioner is to be an independent appointment from outside of government, and the volume of appeals to be heard by the commis- sioner is absolutely unforeseeable. It remains to be seen how the sector will be functioning and their behaviour in the face of an arrangement where there are administra- tive penalties and a process that deals with the registrar. K. Corrigan: I was hoping that…. I thought it might be useful to have a bit more of an overview of exactly how it would operate.

Nevertheless, I’ll ask a question about subsection 50(3): “If the commissioner receives a notice of appeal, the commissioner must acknowledge receipt of the notice of appeal. ” Th at actually wasn’t the subsection I wanted to ask about. Can the minister explain…? It seems to me that there is not a hearing. It’s on the record. Is that correct? What is the process, and how would it be conducted? Hon. A. Wilkinson: As noted in subsection 50(4), as the member has eff ectively read out, “an appeal under this

section is an appeal on the record. ” As it says in sub- section (4), it is subject to subsection (5), which says that the commissioner “may consider evidence that is not part of the record as the commissioner considers is reasonably required for full and fair disclosure of all matters related to the decision under appeal. ” K. Corrigan: Considering that this could be a process under which an institution could lose its ability to con- tinue or be subject to severe penalties and very signifi cant impacts, I’m wondering: is there any chance…? It’s an appeal on the record, so that would be what is already there. Is there an opportunity under this

section for someone who owns an institution, has a certifi cate, to have a hearing in any way? Can they ask for the abil- ity to cross-examine or have a lawyer cross-examining? Are any of those kinds of protections in place under this process? [1455] Hon. A. Wilkinson: I won’t belabour the point by re- reading subsection 50(5), but that’s what it provides for. K.

Corrigan: Well, subsection (5) says the commis- sioner “may consider evidence that is not part of the rec- ord as the commissioner considers is reasonably required for a full and fair disclosure of all matters related to the decision under appeal. ” Is the minister then saying we can interpret that as the commissioner has the ability to call a hearing? Th ere’s no reference to it that I can fi nd. It’s a fairly long act, and I may have missed it, but there’s no reference to a hearing.

So that gives the commissioner the power to have a hearing, to allow for cross-examination and other pro- cedural elements that individuals might want. Th ere’s nothing about that that would prohibit that, and that’s within the power of the commissioner. Is that correct? Hon. A. Wilkinson: I would not want to presuppose the decision of the commissioner, nor would I want to presuppose the decision of a superior court interpreting this section, so I have to simply read it on its face. K. Corrigan: Th e minister has invoked not wanting to presuppose.

It’s important for us to know in this chamber what it is that the minister intends. Th e minister is the one that has brought this legislation to this House. I’m asking a pretty pertinent and fair question, I think. Does this legislation…? Would it include the possibility of hav- ing a hearing? I’m getting a circuitous answer, saying: “I don’t know. I wrote the legislation. I don’t know. Let’s wait and see what the Supreme Court says. ” To me, that’s unacceptable. Is the minister planning for the commissioner, which is being created by this legisla- tion, to have the ability to hold a hearing or not? Hon. A.

Wilkinson: Th e commissioner obviously is bound by the rules of administrative law to make sure that there is fairness in the process. Th e

section is de- signed to give the commissioner the discretion to decide what is reasonably required. Th at, of course, may extend to the form of the hearing and the form of the evidence. It’s in the hands of the commissioner. K. Corrigan: Th at’s not the answer that I had a moment ago. It was, I think — I’ll go back and look at the record — essentially: “I don’t want to presuppose what the Supreme Court might say about that. ” What I seem to be hearing now is that the commissioner could hold an appeal, does have the power to hold an appeal, under this act.

Did I interpret what the minister said correctly in this last answer? [R. Chouhan in the chair.] Hon. A. Wilkinson: Th e member opposite misheard me. I said that I would not want to presuppose the con- clusion from the commissioner or a superior court asked to interpret this section. Perhaps we can start all over again. Sections 50 to 62 inclusive approved. On

section 63. K. Corrigan: Division 4, which is sections 63 and 64, deals with regulations. “Th e minister may make regu- lations referred to in

section 41…of the

Interpretation Act. ” It says: “Without limiting subsection (1), the min- ister may make regulations as follows…. ” Th en it’s regu- lations contemplated by this act; regulations prescribing

British Columbia Debates6728 Thursday, March 12, 2015 occupations for the purposes of career occupation; pre- scribing compliance standards for certifi ed institutions for the purpose of the defi nition of compliance standards. [1500] Th is

section perhaps, to some degree…. It expresses one of the areas of real concern that I’ve heard from train- ing schools and language schools about this act. Th ere is a page of types of things that can be prescribed, that is go- ing to come later, that the minister can make regulations about. Th is is exactly what the industry is concerned about in this case.

I’ve expressed a lot of concerns through the last couple of days, but this is certainly one of the major ones — in addition to the fact that there’s a whole group of language schools that are not going to be covered unless they de- cide they want to get designated. Th ere’s concern about that as well. Th is perhaps encapsulates to some degree the con- cerns that many schools had when they felt that they just couldn’t….

Schools and organizations, as well as people that were actually on the minister’s advisory board, said — even though they were part of the process and were supportive of regulation and transparency in their in- dustry because they thought it would do everybody well — that they just can’t support it because of the amount of decisions, the meat on the bones — the way the min- ister himself described it — that would be decided later. Th ese include things like all these things that are go- ing to be contained in regulations later.

Th ose include prescribing the occupations for the purposes of the def- inition of career occupation; compliance standards for certifi ed institutions; the information and records that need to be included in an application for registration — which might be appropriate to be later; requirements for a certifi cate, including requirements related to compli- ance standards; reporting requirements. A whole manner. Th ere’s a whole page of them there. All of this stuff is going to be decided later, and that cre- ates a great deal of concern for the industry.

It is not help- ful to the public, I don’t believe, because students don’t know either what the requirements are going to be. I have real concern about this section, and I think it does encapsulate a lot of the concerns. I don’t know if the minister wants to respond. Sections 63 to 67 inclusive approved. On

section 68. K. Corrigan: I have one question. Th e transition sec- tion says “all the assets and liabilities of the agency ex- cept the fund are transferred to the government. ” Perhaps just a quick explanation as to why that wording is there. Hon. A. Wilkinson: Th e exception for the fund is be- cause the tuition protection fund, being a trust not within the government reporting entity, will be a freestanding entity, and the funds are to be transferred to the trust. K. Corrigan: I’m actually going to refer to a further section, a later section, because other than that, I have no more questions.

Maybe with the minister’s approval, I will…. I just wanted to ask…. Once this is put back into government, I’m assuming that the department, or whatever it is — the information will be FOIable. Is that correct? Hon. A. Wilkinson: Th e provisions of the Freedom of Information and Protection of Privacy Act will apply to this body. Sections 68 to 90 inclusive approved. Title approved. Hon. A. Wilkinson: I move that the committee rise and report the bill complete without amendment. Motion approved on division. Th e committee rose at 3:05 p.m. Th e House resumed; Madame Speaker in the chair.

Report and Th ird Reading of Bills BILL 7 — PRIV ATE TRAINING ACT Bill 7, Private Training Act, reported complete without amendment, read a third time and passed. Hon. T. Lake: I now call committee stage, third read- ing, of Bill 6, the Justice Statutes Amendment Act. Committee of the Whole House BILL 6 — JUSTICE STATUTES AMENDMENT ACT, 2015 Th e House in Committee of the Whole (Section

B) on Bill 6; R. Chouhan in the chair. Th e committee met at 3:07 p.m. On

section 1. Hon. S. Anton: Supporting me today are Dustin Dunlop from Consumer Protection B.C. and ministry staff — Toby Louie and Kristina Ponce. I have others coming in later — Pat Cullinane, Shannan Knutson, Darryl Hrenyk, Neil Reimer and Peter Robinson.

British Columbia DebatesThursday, March 12, 2015 6729 L. Krog: Welcome to the minister’s staff to assist her this aft ernoon. I understand we have a limited period of time, and we’ll certainly try to use it as wisely as the op- position always does, of course. With respect to, in particular, the fi rst sections of this act, dealing with the amendments to the Business Practices and Consumer Protection Authority Act, I’m looking for some general information to start before we get too heav- ily into the sections themselves. In particular, I’m won- dering where the impetus for this legislation came from. [1510] Hon.

S. Anton: The staff and government and Consumer Protection B.C. have been aware of certain predatory practices in the debt repayment issue. So see- ing what other jurisdictions have been doing, following them and following industry concerns, the issue has been brought forward and is here before the House today. L. Krog: I’m just curious to know a bit of the history, in terms of that interaction with government by Consumer Protection B.C. and others. When did these kinds of com- plaints start to come forward? What form did they take?

Were there a signifi cant number of advocacy groups in- volved who presented this issue to government? Hon. S. Anton: Th e debt collection industry advisory group meeting in April of 2011 at Consumer Protection B.C. was the fi rst time it was addressed at Consumer Protection B.C. in a formal way.

I can quote, actually, from the minutes of the meeting at that time, which said: “Following extensive discus- sion, it was determined that in the absence of knowing the magnitude of the problem, it was not possible to state whether a new regulatory regime was required or if con- sumer education would be suffi cient in addressing the members’ concerns. ” Th at’s when the matter started to come forward and started to be thought about in a more formal way. L.

Krog: I wonder, for the benefi t of the House and those watching at home, if the minister could explain what Consumer Protection B.C. is and how those con- cerns were in fact relayed to them, as opposed to what I asked for earlier, which is whether or not any advocacy groups in the province, particularly for the poor and the vulnerable, had raised this issue directly with govern- ment — i.e., to the ministry itself. Hon. S. Anton: I’ll answer the second part fi rst. Th en I’ll come back with the fi rst answer.

At that time, in 2011, there were no advocacy groups coming forward at that time. [1515] Regarding Consumer Protection B.C., in 2004 the prov- ince delegated the administration of consumer protection legislation to the newly created Consumer Protection B.C., and Consumer Protection British Columbia has an administration agreement with the Ministry of Justice. It operates at arm’s length, and its job is to manage certain pieces of legislation on behalf of the province. L. Krog: I want the minister, perhaps, to expand some- what on the description of Consumer Protection B.C.

It is a non-governmental, self-regulatory body, and it is in fact administering some aspects of the Business Practices and Consumer Protection Act. Is that fair to say? If so, when was it created, and why was that model chosen as opposed to direct regulation by government, by the public service? Hon. S. Anton: As I mentioned a moment ago, it was set up in 2004. It was to consolidate the administration of various pieces of consumer protection legislation in the province. It was believed to be a structure that would be more responsive and fl exible to deal with issues at arm’s length from government.

Th ey set their own fees. Th ey make their own decisions, and over time they can take on, and have taken on, new responsibilities. L. Krog: I assume these new responsibilities will in- clude, obviously, the changes we’re making today. I’m go- ing to assume — and I’m sure the minister will explain this further — that previously these functions were car- ried out by the government of British Columbia more directly through the ministry or the public service. I’m curious to know.

Were there, again, complaints from the industry or suggestions from the industry that this model would, in fact, be more eff ective as far as they were concerned? [1520] Hon. S. Anton: Th e acts which are administered now by Consumer Protection B.C. were administered in gov- ernment prior to that. Th ere was a consumer services div- ision in the Ministry of Solicitor General, as it then was. Th ere are other jurisdictions in Canada that are mov- ing to the delegated model, which seemed to be a mod- el that worked well for consumer protection issues. It’s more fl exible.

People in Consumer Protection B.C. de- velop certain expertise that helps out the industries that they’re charged with managing. L. Krog: It’s a non-governmental self-regulatory body. How is it created? Pursuant to what statutory authority? How is its management determined? How is it governed? How does it work? Th e minister has indicated it’s more fl exible. It’s sup- posedly for the benefi t of consumers. Is that a model that is now in place in every other jurisdiction in Canada? Or is it a model in place in fi ve, ten, whatever…? I’ d be curi- ous to hear from the minister.

British Columbia Debates6730 Thursday, March 12, 2015 Hon. S. Anton: Th e act is the Business Practices and Consumer Protection Authority Act from 2004. Th at charges Consumer Protection B.C. with administering diff erent forms of consumer protection laws. Th ey are the operational arm of consumer protection. Th ey do some investigation services, inquiries, consumer educa- tion, amongst other things. L. Krog: I’m just wondering if the minister could an- swer my question with respect to how many jurisdictions operate with this kind of model. [1525] Hon. S.

Anton: Consumer Protection B.C., as it is set up, does seem to have a broader mandate than other provinces. Ontario and Alberta both have motor vehicle sales authorities. However, in British Columbia we also have a Motor Vehicle Sales Authority. On top of that we have Consumer Protection British Columbia, which ad- ministers a number of other statutes. L. Krog: My understanding is that Consumer Protection B.C. had, in fact, requested — much earlier, obviously, than 2015 — that government bring in the changes that we’re dealing with today.

I’m curious to know — given that, as I understand it, the number of complaints against these debt companies started to rise fairly rapidly — why it has taken so long to bring forward these legislative changes. Hon. S. Anton: Perhaps the member could clarify the 2008 piece. In terms of Consumer Protection B.C. ’s records of minutes and so on, it shows up in 2011. It is good to have changes made as early as possible, but we need to ensure that they’re done correctly. Th at is what has been done here. At the same time as the legislation around debt collection, the predatory practices….

We’re also updating the act’s debt collection provisions gener- ally to ensure that the law refl ects current marketplace practices. L. Krog: Forgive my very cursory reading of some of this. But perhaps the minister could explain to me…. Given that the intent of the legislation is to regulate the so-called debt settlement companies, without this legis- lation in place, is there any…? Th e authority itself that the minister has described earlier in her answers — does it have jurisdiction over them now in any way, shape or form? Or is this to deal with an entirely new practice in British Columbia?

In other words, have we had debt settlement com- panies in operation for 20 years or ten years, or is this legislative regime set up specifi cally to deal with that issue? And there is, in fact, no regulatory regime in place now. [1530] Hon. S. Anton: Th e predatory practices which are seen now are relatively new. Th ey are exploiting a gap in the regulation which isn’t captured in the existing legislation. We regulate the sector itself, but this particular piece of it was a gap in the legislation.

Th ere were some provisions that were helpful along the way, existing provisions relating to deceptive prac- tices, and there were contractual provisions — both of which were captured by Consumer Protection B.C. But the people in this industry seemed to manage to just keep moving ahead of the regulations which were in place, so it was needed to bring down a proper, more complete regulatory regime so as to stop these practices. L. Krog: If I can summarize it somewhat and maybe ask the minister to explain a little further.

I take it that companies that provided this kind of service — and I use that term somewhat sarcastically and pejoratively — have in fact been operating and delivering this kind of service for some period of time in British Columbia. If so, can the minister perhaps enlighten me as to how long? Has this been a way of doing business for fi ve or ten years? I’m well conscious of the fact that trustees, in bank- ruptcy, for years in British Columbia have off ered propos- als to creditors under the Bankruptcy Act, consolidated debt payment programs.

Th ere’ve been other ways that consumers with signifi cantly high personal debt have tried to deal with their debt issues. But in terms going to this kind of service, where someone is going to act as the go-between and presumably bring down the total debt to something you can handle, how long, in fact, have these companies delivered this kind of service? Hon. S. Anton: Th ere has been debt-pooling legisla- tion in place, but the actual predatory practices which this legislation is dealing with were really fi rst noticed in 2011 and only in a rather minor way prior to that. L.

Krog: I take it from that, that what the minister is saying is, given the establishment of the authority and this regime and previous consumer protection legislation that was formerly delivered by government — by the pub- lic service, by the government directly — this did not…. [Interruption.] Th at would be a signifi cant fi ne on our side of the House, not that I’ d care to rat out a minister, of course. Solidarity exists in both caucuses. I’ll perhaps give the minister a minute before I continue with my question. To come back to how this was delivered previously and this regime in place.

It started to become a prob- lem. Was the problem conveyed, as I suggested earlier, mainly to Consumer Protection B.C.? Has this always been an issue? [1535]

British Columbia DebatesThursday, March 12, 2015 6731 Indeed, are these companies that are in fact now being accused of these predatory practices, indirectly, by the presentation of this legislation…? Are these predatory companies in fact members of…? Do they subscribe to, pay moneys to, the very authority which has requested this legislative change? Hon. S. Anton: This particular group of compan- ies carrying on these practices are not licensed at the moment. They’re not paying any fees to Consumer Protection B.C. L. Krog: At present, then, these companies do not fall under the authority at all?

Th ey simply have to get a business licence in any given community, like any other business. Th ey can set up shop and start delivering this — and I’ll use the term loosely again — service and, apart from that, paying their PST and GST, etc. Th at’s all they have to do? Is there any other regulatory regime or any other direct government control or any other agency of government or something similar to Consumer Protection B.C. that might indeed provide any oversight of how these busi- nesses conduct themselves? Hon. S.

Anton: As I mentioned earlier, the general application of consumer protection law applies — law relating to deceptive practices, to contracts. As these companies were not licensed by Consumer Protection B.C., there isn’t a general way of describing how they were licensed or where they were licensed or where they set up business, and Consumer Protection B.C. doesn’t have a record of them all. Th ey might not even necessarily be within British Columbia, so I can’t answer that question with any specifi city. L.

Krog: I take it from the minister’s answer that, in fact, these may be out-of-province corporations or out-of-country corporations operating within British Columbia that take out a business licence. It’s presum- ably at least that, but otherwise, there has been no regu- latory regime in place that would govern their activities. I take it that they operate entirely separately from existing companies that do, in fact, participate or are members of Consumer Protection B.C. I take it that we are the seventh province to enact legislation with respect to this.

Is my understanding, as just stated, all accurate? [1540] Hon. S. Anton: Th e other companies operating in this world, so to speak, are sometimes out of province. A number of them do seem to be from Ontario. We’re not aware of any that are from out of the country. There is a regulatory regime. As I’ve mentioned a couple of times now, they are subject to deceptive-prac- tices legislation and contracts legislation. However, that hasn’t been enough to stop the certain predatory practi- ces which have arisen. The question was: are they separate from existing companies?

We are not aware of them being a part of any of the currently licensed companies with Consumer Protection British Columbia. Th e member asked whether there were seven prov- inces or we were the seventh. We think we are the sixth — with four provinces in force, one province not in force and ourselves as the sixth. L. Krog: My understanding is that spokesperson Tatiana Chabeaux-Smith indicated that the complaints against these companies rose from eight in 2010 to 135 in 2013. She went on to say: “We are receiving com- plaints against some of the debt settlement companies.

We are supportive of anything that strengthens the rules around them. ” Th ose were her comments in the Province on January 15, 2014, as far as I’m aware. My information may be inaccurate, but I’m curious to know. Can the minister advise how many complaints or specifi c cases have in fact been made in 2014 and/or in ’15, if that information is available? Hon. S. Anton: Th e information the member is refer- ring to, I believe, is this. Th at is the aggregation of the number of inquiries made to Consumer Protection B.C. Th ey may have been complaints, or they may have been straight-up inquiries.

Th e numbers are these. In 2010 there were eight. In 2011 there were 157. In 2012 there were 52. In 2013 there were 137. In 2014 there were 71. And 2015 to date…. Except I’m not sure if I can tell you what the date was. I’ll look for that in a moment. But in this part of 2015, there are eight. L. Krog: Now, dealing with some of the less general matters…. Dealing with

section 1 specifi cally, perhaps the minister can explain the eff ect of

section 1. Hon. S. Anton: As I mentioned earlier, some of the work that is being done here is just general updating, as opposed to dealing with the predatory practices. Th is

section 1, which deals with

section 115 of the Business Practices and Consumer Protection Act, is an updating section. What it does is it relates to debt collectors. [1545] A debt collector used to be obliged to disclose only the original name of the creditor with whom the debt was incurred and the original amount of the debt owed. And of course, debts can be bought and sold, and amounts owed can change. Th e emergence of debt buying as an increased compon- ent of the debt collection industry, along with changes to the total amount of debt owing, has been resulting in consumer confusion, because debtors are not always able

British Columbia Debates6732 Thursday, March 12, 2015 to identify the debt as being owed by them when the col- lector comes calling. So this is to clarify those two things. L. Krog: Again, in terms of where the request for this particular change came from, is it one that arose from Consumer Protection B.C.? Is it, again, from the public or any advocacy groups? And if so, are further changes con- templated? Is this seen as part of some longer-term strategy? Hon. S. Anton: Th e second question: is this part of a broader strategy? No, except insofar as to say that when- ever

an act is open there’s a certain strategy, I think, of up- dating it. Th is is updating it as per Consumer Protection B.C. ’s understanding and knowledge of the marketplace as it currently operates. L. Krog: With respect to

section 1(

b) of the bill, it re- fers to, “Despite subsection (2), a collector may initiate verbal communication with a debtor, before sending to the debtor the written notice referred to in subsection (1), solely for the purpose of requesting the debtor’s home address or electronic mail address in order to send that written notice, if the collector does not have the debtor’s home address or electronic mail address… ” etc. Once received by that company — if, in fact, the debtor provides that e-mail address — is that, in fact, protected by the privacy legislation?

Or is that information that can be passed on to another debt collection agency? Hon. S. Anton: Th e collectors are obliged to follow the terms of what we call PIPA, the Personal Information Protection Act. So they need to comply with that when they initiate communication and so on. L. Krog: Just so I’m clear, because I can’t pretend to be an expert, would that mean that that information cannot be shared with another creditor, for instance, or another collection agency or any other person or persons? [1550] Hon. S.

Anton: I believe the question was whether a collector might pass on information that he or she acquires to the next collector. Th e answer is that they are bound by the provisions of PIPA, the Personal Information Protection Act. I don’t have all the details of that act at hand, but certainly these collectors would be bound by that. L. Krog: I don’t suppose the minister would care to provide me with her commitment to deliver that answer at some future date or time, given that we have a limited amount of time to deal with this bill. Hon. S.

Anton: My staff will follow up with the ap- propriate offi cials and fi nd an answer for the member opposite. L. Krog: I take it, then,

section 115 is merely updating the various sections as indicated and allowing for the addition of electronic addresses. Is that correct? Hon. S. Anton: It has been an issue from time to time that a collector will send information to an address that they have on fi le and it may be the wrong address, an outdated address, in which case they’re actually send- ing personal information to someone who should not be receiving that personal information. Th e purpose of subsection (2.1) is to allow the collector to verbally com- municate with a debtor to confi rm the debtor’s address.

Section 1 approved. On

section 2. L. Krog: Again, if the minister would explain the ef- fect of

section 2. Hon. S. Anton:

Section 116 adds e-mail to the place where the collector can attempt to communicate with the debtor. L. Krog: Were there any other requests made by Consumer Protection B.C.? I assume this is a result of their communication with the ministry. Any other re- quests that might have aff ected this

section which haven’t been answered appropriately? [1555] Hon. S. Anton: I’ d just like to clarify 116. I think I misstated it when I spoke a moment ago. Th e provision in 116 is that a collector may not turn to a debtor’s place of employment unless they’ve tried to contact them. Th e ways that they have to try and contact them now include through their e-mail, should they know it. So that adds e-mail to the provisions of that section. L. Krog: Again, was this change at the request of Consumer Protection, and/or is it a suffi cient reply to what they’ d asked for?

Or were there any other agencies or ad- vocacy groups that made a similar request to government? Hon. S. Anton: Th is did not come from an external agency. I think the suggestion to update it actually came from inside government — a suggestion from inside Justice that it be updated at the time we’re updating the other parts of this legislation.

Section 2 approved. On

section 3. L. Krog: My reading of

section 117 is simply that, again, it’s adding electronic mail address to the information, and

British Columbia DebatesThursday, March 12, 2015 6733 it allows for confi rmation. I just wonder if the minister can confi rm that my

interpretation is in fact correct. Hon. S. Anton: Again, this is adding e-mail to some provisions of the act. In the fi rst section, 117(1), it adds e-mail to the information about a debtor that a collector can contact a person other than the debtor to obtain. So they can ask to get the e-mail. Th e second part of this is they must not communicate with the employer, except for confi rming the employment, but only if they’ve given notice to the debtor. So they can’t just phone and embarrass a person at their employment just for the sake of phoning and embarrassing them. L.

Krog: I take it that that doesn’t require that an em- ployer in fact provide that information. Or is there in- deed any other provision that requires an employer to provide that kind of information? Hon. S. Anton: I wonder if the member could repeat that question, please. L. Krog: My quick read of this is that this would not in fact require an employer ever to provide that infor- mation. Or is there some other provision in the act that requires that kind of information to be disclosed to a debt collector? [1600] Hon. S. Anton: Th e requirements in

section 117 apply to the collector, not to the employer.

Section 3 approved. On

section 4. L. Krog: Maybe it’s only because it’s Th ursday aft er- noon, but in reading

section 4, it says

section 121 “is amended (

a) in subsection (1) (

a) by striking out ‘recov- ery of a debt’ and substituting ‘recovery of the debt. ’” I’m rather reminded of what Dorothy Parker was reputed to have said about Lillian Hellman, that everything she said was a lie including “and” and “the. ” I’m hopeful that the minister will be able to explain the legal importance of changing it from “a debt” to “the debt. ” Hon. S.

Anton: I’m sure that the member opposite would have preferred if we had put “recovery of the said debt. ” However, we refrained from putting in “the said debt. ” I think the purpose is the same, though, which is just to refer to the particular debt, not to a general debt. L. Krog: Th ank you to the minister for an interesting explanation of this substantive legislative change that confronts us today. Subsection (

b) of

section 4 says: “in subsection (1) (

b) by striking out ‘legal proceeding’ and substituting ‘legal proceeding for the recovery of the debt. ’” Again, if the min- ister could explain why that particular change is necessary. Is there some judicial review of this or some case or some decision that would require this legislative amend- ment to change it from “legal proceeding” and to be so specifi c as to say “legal proceeding for the recovery of the debt, ” as if somehow there might be some question as to what the debt collection company was in fact at- tempting to obtain? Hon. S. Anton: It is simply to make it more specifi c. L.

Krog: Th en I take it there hasn’t been a judicial in- terpretation. Th is is some very careful, studious, upright, honest and scholarly person reviewing this statute who has decided that we need to get somewhat more specifi c so that there will be no question. Is that a fair comment? Hon. S. Anton: Y es, and I would agree with those de- scriptions of our staff : upright, scholarly, clever, honest and all-round good public servants. L. Krog: It’s always a pleasing thing to see unanimity in the chamber, especially so late in the day. With respect to subsection (c), “by adding the follow- ing subsection:

(1.1) Subject to subsection (1), a collector must not bring a legal proceeding for the recovery of a debt unless the collector fi rst gives notice to the debtor… ” and brings the proceeding. What, again, is the purpose of adding that particular section? [1605] Hon. S. Anton: Th is

section ensures that the debt- or is notifi ed in all circumstances where a collector in- tends to commence an action against the debtor. In the fi rst subsection, subsection (1), that’s where a debt has been assigned. In subsection (2) it’s where the collector is collecting on their own debt. And in subsection (3) it’s where the collector is actually a collection agent. So in all circumstances there has to be notice before a legal proceeding can be brought. L. Krog: I think the minister, although maybe she rep- resents a constituency of greater wealth than mine….

It’s not uncommon for constituents to come in and bring in threatening letters from debt collection agencies saying they’re going to commence legal proceedings within 15 days if they don’t receive — I’m exaggerating slightly — a pint of blood and your fi rst-born. Th at kind of common threatening letter has been sent out on many occasions. I’m just wondering: is this

section designed to remedy that kind of activity? And as a follow-up, as well: does this

section come out of work that the ministry itself has done, or is this something that Consumer Protection B.C. has requested or suggested?

British Columbia Debates6734 Thursday, March 12, 2015 Hon. S. Anton: If the member’s constituents are get- ting threatening or harassing letters, they should bring that to the attention of Consumer Protection B.C. Th e provisions here, again, were generated within the ministry as being a better practice, a more complete prac- tice for collectors. L. Krog: So contrasting it with

section 121 as it exists, (2) says: “ A collector must not recommend to a creditor that a legal proceeding be brought, unless the collector fi rst gives notice to the debtor that the collector intends to recommend that a proceeding be brought. ” In other words, the collection agency, the debt col- lector, says to…. We’ll use, for the sake of argument, Canadian Tire. “We recommend that you sue. ” But that can only happen if, in fact, they’ve already written to the debtor and said: “We are going to recommend to Canadian Tire that, in fact, action be commenced. ” Th at’s my

interpretation of this section. I take it this addition will, in fact, mean that even aft er they’ve done that, they then have to…. Th ey have to do that fi rst be- fore they’ll be in a position to then write to the debtor and say that the collector intends to bring the proceeding. Or have I got this backwards? [1610] Hon. S. Anton: When the debt has been assigned to a debt collection agency, it is generally the agency that would tell the debtor that the agency intends to recom- mend that a proceeding be brought. L. Krog: Just again, so I’m understanding. Th is

section says: “If a debt is assigned to a collector, the collector… must not recommend to a creditor” that legal proceed- ings being brought. What sort of a situation are we talk- ing about? Are we talking about an assignment in the full sense that the debt becomes the property of the collector? Or are we talking about a situation where the collector is doing it on behalf of the creditor and therefore it can’t proceed because it’ll be up to that creditor, presumably, to front or pay for the cost of the legal proceeding? Perhaps the minister could just explain, because I’m having a little trouble.

Th e section, as she points out, says: “If a debt has been assigned…. ” What do we mean by “as- signed” in this particular case? Hon. S. Anton: In all cases the notice has to be given to the debtor that the collector intends to recommend the proceeding. Th e fi rst of the three pieces is where the debt is fully assigned. Th e second is where the collector is collecting it on their own behalf. Th e third is the col- lection agent scenario, which I think was described by the member opposite.

Section 4 approved. On

section 5. L. Krog: I take it that it’s just as straightforward as it appears. It’s simply changing the name in consequence of the repeal and replacement? Hon. S. Anton: Y es. Th is and other changes in the act show the change in language from “debt pooler” and re- placed with the words “debt repayment agent. ” Sections 5 and 6 approved. On

section 7. L. Krog: Again, I take it that

section 7 is simply con- sequential to

section 6, which we’ve just passed, which broadened the definition of “debt pooler” and “debt pooling system” with the broader defi nition of “debt re- payment agent. ” Th e assumption is, then, that that will capture anyone engaged in the delivery of what I referred to earlier in the day’s debate as this kind of service? Hon. S. Anton: Th e purpose of this

section is to catch anyone who represents the debtor. Th is is consequential to the changes overall of the regime from the debt pool- ing system, so to speak, to the debt repayment agent system. L. Krog: Just out of interest, I note the term “debt repayment agent” in

section 6. It says that it means “a person who acts for or represents, or off ers to act for or represent, a debtor in arrangements or negotiations with the debtor’s creditors, which arrangements or negotia- tions may include receiving money, ” etc. I’m just curious. Given that we’ve changed an “an” to a “the, ” and recovery of “a” debt is now “the” debt…. [1615] I’m just wondering. Would it perhaps have been more appropriate to refer to, with respect to the debtor’s credit- or or creditors…?

I mean, I realize that most people who get into fi nancial trouble have more than one creditor, but is the minister satisfi ed that the language “the debt- or’s creditors” would, in fact, cover the situation where you only have one? Maybe you’ve got — with great respect to the Canadian banking industry, which is supposed to be as solid as a rock — one rather silly bank that has loaned a great deal of money, unsecured, to one individual, and their debt is $100,000. Are they, in fact, captured by this

section now, or is that a situation that the act wouldn’t extend to? Hon. S. Anton: We are satisfi ed, I am satisfi ed, that the plural here encompasses all situations. L. Krog: Well, the reason I raise it…. I want to go back to the

section we’ve just changed. In

section 121(1)(

a) it

British Columbia DebatesThursday, March 12, 2015 6735 says: “If a debt has been assigned to a collector…. ” It talks about recovery of “a debt” and then subsequently the re- covery of “the debt. ” It just strikes me that “the debtor’s creditors, ” by implication, is most defi nitely plural. I don’t wish to create unnecessary consternation with anybody, and maybe I’m being a bit obtuse here today, but it strikes me that language is supposed to have some meaning. Th ere’s a diff erence between “a creditor” and “creditors. ” One is singular, and one is plural.

I’m somewhat concerned that this, in fact, may present a bit of an issue. [1620] Hon. S. Anton: We had Google versus paper, and paper won. Th e singular means plural and plural means singular —

Interpretation Act of British Columbia. L. Krog: I’m certainly glad we settled that issue. Th e fact that I raised it and it required that much work to get the answer tells me it was an issue worth raising. I’m happy to see

section 7 passed.

Section 7 approved. On

section 8. L. Krog: With respect to

section 8, which repeals sec- tion 127 as it exists and substitutes this new

section 127. Again, can the minister explain the eff ect of this new sec- tion as proposed? Hon. S. Anton: Th is

section is the heart of the new debt settlement legislation. It adds new prescribed and prohibited practices for debt repayment agents. L. Krog: It’ s lovely to hear that language. If this is the heart, I’m wondering if she can explain what she means by describing it as the heart and why it is so important. Hon. S. Anton: I’ll just read through the purposes of the diff erent sections. Subsection (1).

Th is prohibits a debt repayment agent from acting for or representing a debtor before a contract has been signed by the debtor or from acting for or repre- senting a debtor if the debt repayment agent is acting for or representing any of the creditors. Subsection (2) prohibits debt repayment agents from including clauses in their contracts with the debtor which prohibit the debtor from communicating with their creditors. In other words, the debtor needs to be able to continue to talk to their own creditors.

Regulations may prescribe the information or disclosure statements that must be included in the contract between a debtor and the debt repayment agent. Sub (3) allows cabinet, or by regulation, to cap the fees a debt repayment agent can charge a debtor. Sub (4). A debt repayment agent is prohibited from charging any fee to the debtor before a repayment pro- posal has been agreed to by both parties. Sub (5) prohibits a debt repayment agent from off er- ing gift s or enticements to a debtor for engaging the debt repayment agent’s services.

Sub (6) prohibits a debt repayment agent from lend- ing money or providing further credit to their clients or indirectly collecting a fee for assisting their clients in ob- taining additional credit from a lender. Sub (7) requires debt repayment agents to inform the debtor within 30 days if a creditor has failed to respond or refuses to participate in a debt repayment proposal. L. Krog: Just to be clear so that I understand this. When we use the term “debt repayment agent, ” it means a person who acts or represents or off ers to represent a debtor.

I take it, then, that one of the issues which this is designed to address is that, in fact, in practice what’s been happening is that they have purported to act for both sides on occasion. Is that the issue that we’re trying to address quite specifi cally? [1625] Hon. S. Anton: It’s not the only issue, but it is certainly a potential issue. L. Krog: Th e minister has described it as a potential issue. I guess I’m curious to know because…. Obviously, Consumer Protection B.C. isn’t sending me e-mails or my ministry e-mails every day. I don’t have one to be sent to.

In other words, has this issue been raised by them as a practice that has occurred, or are there specifi c cases where some of these folks who fall outside the present regulatory regime have, in fact, been candidly, to use a common term, playing both sides of the street? Hon. S. Anton: Playing both sides of the street, as the member describes it, has been raised as a potential pred- atory practice which is being prohibited by this legisla- tion. We don’t have actual examples. We’re just making sure we close off all the diff erent ways that these laws can be circumvented. L.

Krog: We won’t argue about whether B.C. is the sixth or the seventh jurisdiction with respect to this kind of legislation. Is this particular

section and its intent modelled on existing legislation in other provinces where they’ve in- cluded this, and they actually had serious examples of this kind of practice occurring, where you’re essentially acting for both sides — which is prohibited, certainly, in the legal profession? Or is this simply the wisdom of the legislative draft ers and ministry staff ? Hon. S. Anton: Th e advantage of being fi rst is you can claim to be fi rst. Th e advantage of being later is you can

British Columbia Debates6736 Thursday, March 12, 2015 draw on the expertise of others. Most of this

section is drawn on the expertise of others or the experience in other provinces, except for sub (5), which was generated in the work done in this province and thought to be wise to include. L. Krog: Given that much of this

section was drawn from other jurisdictions, then, were they encountering this type of predatory practice, where, as we call them now, a debt repayment agent was in fact purporting to act for both sides or keeping secret from one side the fact that they were also getting paid by the other side? [1630] Hon. S. Anton: Sub (1) refl ects the previous debt pool- ers legislation, where you could only represent one side of the transaction. L. Krog: Specifi cally, with the proposed section, in (2) it says: “ A contract referred to in subsection (1) (a) “(

a) must be signed by the debt repayment agent and the debtor, “(

b) must not contain a term or condition that prohibits the debtor from communicating with the debtor’s creditors, and “(

c) must contain the prescribed terms, information and disclo- sure statements. ” Firstly, I’m curious to know why, given electronic com- munication and all of those things, the provision wasn’t made for the possibility of the simple exchange of e- mails, whether that was felt to be too dangerous or not safe enough in terms of ensuring that, in fact, a contract was entered into. Secondly, what’s the purpose of “must not contain a term or condition that prohibits the debtor from com- municating with the debtor’s creditors”? Hon. S.

Anton: Th e question, I think, was: why not allow the contract itself to be some form of electronic communication? It’s viewed to be a better practice that it be written, and one of the advantages of that is that Consumer Protection B.C. can actually review the con- tract and make sure that it’s compliant. Why prohibit the communication? Well, it’s important that a debtor be able to communicate with their creditor and that the debt repayment agent should not get in the middle of that ability to communicate. L.

Krog: I’m thinking of the practice of law where, once you know a party is represented by counsel, it’s a breach of the rules for you to communicate directly with that party. Th e concept is that the counsel who has taken on their role as essentially practicing law is acting as an agent for a client. Why that would be prohibited in this case —”must not contain a term or condition that pro- hibits…. ” Given the superior power of the debtor-creditor rela- tionship in and of itself, I would have thought that this, which says you can’t prohibit that once you’ve taken on the job….

Y ou’re presumably going to receive pay for do- ing it, which is as a debt repayment agent. Presumably, that debt repayment agent is bringing some skills, experi- ence and knowledge to the table. Why would we want to allow what is presumed to be the powerful creditor to be in a position to communicate with the weaker debtor that might, in fact, enter into an arrangement that would not be nearly as benefi cial as an arrangement that they’re paying a debt repayment agent to secure on their behalf? Hon. S. Anton: Th is is so the debtor can continue to connect with or speak to the

Document details

Collection	British Columbia — Debates (Hansard)
Citation	20150312pm-Hansard-v21n10
Type	hansard
Volume / chapter	20150312pm Hansard v21n10
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	518841a779dcbb9232c337f745221eff7b88531b

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