2003 Legislative Session: 4th Session, 37th Parliament

HANSARD

The following electronic version is for informational purposes

only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, OCTOBER 28, 2003

Afternoon Sitting

Volume 17, Number 11

CONTENTS

Routine Proceedings

Page

Tributes

Legislative press gallery Webster

Award winners and nominees

J. MacPhail

Introductions by Members

Introduction and First Reading

of Bills

Youth Justice Act (Bill 63)

Hon. G.

Plant

Columbia Basin Trust Amendment Act,

2003 (Bill 79)

Hon. R.

Neufeld

Statements (Standing Order 25 B )

Federal policy on gravel extraction

from Fraser River

R. Hawes

Naturopathy

J. MacPhail

Economic development in Lumby

Christensen

Oral Questions

Loss of income assistance benefits

J. Kwan

Hon. M.

Coell

Crime rate in B.C.

J. MacPhail

Hon. R.

Coleman

Hon. G.

Campbell

Development of aquaculture industry

G. Trumper

Hon. J. van

Dongen

Government aid for B.C. cattle

industry

P. Nettleton

Hon. J. van

Dongen

Employment standards in agriculture

industry

K. Stewart

Hon. G.

Bruce

Petitions

P. Nettleton

Reports from Committees

Select Standing Committee on

Parliamentary Reform, Ethical Conduct, Standing Orders and Private

Bills, second report

B. Lekstrom

Committee of the Whole House

Accountants (Chartered) Amendment

Act, 2003 (Bill 78)

Christensen

Hon. G.

Abbott

Mayencourt

B. Kerr

I. Chong

Reporting of Bills

Accountants (Chartered) Amendment

Act, 2003 (Bill 78)

Third Reading of Bills

Accountants (Chartered) Amendment

Act, 2003 (Bill 78)

Committee of the Whole House

Tenancy Statutes Amendment Act, 2003

(Bill 77)

J. Kwan

Hon. R.

Coleman

Mayencourt

M. Hunter

J. Bray

R. Stewart

Report and Third Reading of

Bills

Tenancy Statutes Amendment Act, 2003

(Bill 77)

Introduction and First Reading

of Bills

Western Pentecostal Bible College

Amendment Act, 2003 (Bill Pr409)

B. Penner

[ Page 7589 ]

TUESDAY, OCTOBER 28, 2003

The House

met at 2:03 p.m.

Tributes

LEGISLATIVE PRESS GALLERY

WEBSTER AWARD WINNERS

AND NOMINEES

MacPhail: I want to acknowledge some important achievements made last week

by members of our very own press gallery. On Thursday night of last week, the

annual Webster Awards for excellence in B.C. journalism were given out. While

some may say that's a contradiction in terms here in British Columbia, I am, as

you know, a passionate defender of and an advocate for our extremely

professional press gallery. Could the House please join me in congratulating the

Commentator of the Year, Paul Willcocks. Also, BCCTV's Ed Watson was awarded a

Webster fellowship, and I understand Ed will take on the onerous task of

travelling to New Zealand to study electoral reform. I also want to acknowledge

that Judith Lavoie, Les Leyne and Jeff Rud were nominated for best print

reporting. Would all members please acknowledge, thank and honour our colleagues

of the press gallery.

[1405]

Introductions by Members

Christensen: I'm pleased to welcome to the House today one of my

constituents, Dave Carroll from Lumby. Dave's a past president of the Lumby

Legion, and he's joined this afternoon by his daughter Lynn Radbourne, who

resides here in Victoria. Would the House please make them both very welcome.

Hawes: Today the naturopaths of British Columbia are set up at the Grand

Pacific Hotel, doing testing for anyone who wants to go over and have a little

bit of a health checkup.

Today in

the House we are honoured with the presence of Dr. Garrett Swetlikoff, the

president of the British Columbia Naturopathic Association; Dr. Chris Kind; Dr.

Stephanie Trenciansky; Dr. Jim Chan; Dr. Stefan Kuprowsky; Jim Hart, who is a

public relations consultant for the naturopaths; and Glenn Cassie, the executive

director of the BCNA.

I urge

anybody who has time to go over and get tested. Maybe, like me, you'll find out

things you needed to know but really didn't want to know. Could the House please

make them welcome.

Hon. G.

Bruce: There's a jewel of a little community on Vancouver Island — well,

there are many jewels of little communities on Vancouver Island — Lake

Cowichan. Today with me in the House are some friends of mine, Garth Sims and

his grandson Bradley Vomacka. Garth is actually a councillor for the community

of Lake Cowichan, and with him is Georgina Taylor. Would the House make them

welcome.

Mayencourt: We have three visitors in the gallery, and I'd like to introduce

them. Visiting from Israel are Eyal Heldenberg and Idan Bobrov, and from France

is Lucy Bourner. Would the House please make them welcome.

Introduction and

First Reading of Bills

YOUTH JUSTICE ACT

Hon. G.

Plant presented a message from His Honour the Administrator: a bill intituled

Youth Justice Act.

Hon. G.

Plant: I move that the bill be introduced and read a first time now.

Motion

approved.

Hon. G.

Plant: I'm pleased to introduce Bill 63, the Youth Justice Act. As members

know, on April 1, 2003, the federal Young Offenders Act was repealed and

replaced with the new federal Youth Criminal Justice Act. Bringing in a new

federal act afforded us in British Columbia the opportunity to review and update

our own provincial youth justice legislation.

The Youth

Justice Act repeals the existing Young Offenders (British Columbia) Act, repeals

the existing youth provisions in the Correction Act and consolidates the

relevant provisions from those acts into one new Youth Justice Act, written

specifically for young offenders.

Three main

objectives are fulfilled by this new act. First, it ensures that our provincial

statutes are consistent with federal terminology and up to date with current

practice. Second, the act parallels the federal legislation by ensuring that

serious consequences are available as a sentencing option for six serious

provincial statute offences that previously could only attract non-custodial

dispositions. Third, the legislation increases the maximum custody sentence

available for serious provincial statute offences where the maximum penalty for

an adult is more than six months from a maximum of 30 days to a maximum of 90

days.

Finally,

the Youth Justice Act supports the work being done by the Ministry of Children

and Family Development to devolve youth justice programs and services to

regional and aboriginal authorities. By focusing on the specific needs of youth

in conflict with the law, while increasing the use of custody for the most

serious provincial statute offences, this bill balances the need to focus on

rehabilitation for young persons while providing increased consequences for

those youth who pose a risk to public safety — an-

[ Page 7590 ]

other of the actions taken by this government to ensure that we have safe

streets and safe communities.

[1410]

I move that

the bill be placed on the orders of the day for second reading at the next

sitting of the House after today.

Bill 63

introduced, read a first time and ordered to be placed on orders of the day for

second reading at the next sitting of the House after today.

COLUMBIA BASIN TRUST

AMENDMENT ACT, 2003

Hon. R.

Neufeld presented a message from Her Honour the Lieutenant-Governor: a bill

intituled Columbia Basin Trust Amendment Act, 2003.

Hon. R.

Neufeld: I move that the bill be read a first time now.

Motion

approved.

Hon. R.

Neufeld: I am pleased to introduce Bill 79, the Columbia Basin Trust

Amendment Act, 2003. These amendments implement decisions of the core services

review for Columbia Basin Trust. Through the act the trust board will be

restructured to modernize it, enabling it to more efficiently deliver the

legislated mandate of the trust.

A smaller,

skill-based board will continue to be made up of Columbia basin residents who

are guided by priorities set by the basin residents through the Columbia basin

management plan. Importantly, the changes will also clarify issues of ownership

and control as they relate to new accounting standards to ensure that auditors

continue to include government's investments in the trust in government's

summary accounts.

The

government remains committed to supporting the work of the trust and to

providing ongoing funding for local power projects that benefit the region. As

well, a number of the amendments support government's deregulation initiative to

reduce unnecessary red tape and regulation by one-third within three years.

I move that

the bill be placed on the orders of the day for second reading at the next

sitting of the House after today.

Bill 79

introduced, read a first time and ordered to be placed on orders of the day for

second reading at the next sitting of the House after today.

Statements

(Standing Order 25b)

FEDERAL POLICY ON GRAVEL

EXTRACTION FROM FRASER RIVER

Hawes: Yesterday Dr. John Davis, regional director general for the federal

Department of Fisheries and Oceans, stated in a letter to the Vancouver Sun

that DFO policies on gravel removal from creeks and streams are not responsible

for the recent flooding disasters. Last week Dale Patterson, regional manager,

made the same claim. To the extent that heavy rains caused the floods, they are

correct. However, flooding came much faster and with much more severity because

of the DFO policy, which makes gravel and silt removal all but impossible.

Property is more extensively damaged and lives are put at greater risk when the

ability of creeks and streams to carry runoff is diminished. This has been

confirmed with Mr. Merv Harrower, provincial director of the PEP program. He's

extremely concerned with the dangers created by this policy.

I've walked

many of the creeks and streams in the Hatzic Prairie area of my riding, and I

have numerous photographs taken both before and after the flooding. They make it

abundantly clear that both Dr. Davis and Mr. Patterson are incorrect in their

assessment.

This

ill-conceived DFO gravel moratorium is intended to provide additional habitat

for fish. Fair enough. But the reality is that the few fish that do spawn in

these choked watercourses do so in high-water periods. Their eggs hatch in

low-water periods, and the silt prevents the hatchlings from escaping. They die

in great numbers within these non-functioning systems. The people of Hatzic

Prairie know this.

constituents feel that the DFO is unaware and uncaring of the damage their

policy is doing to the people affected, to their property and to the fishery

itself. People who are struggling to protect their families and their property

are regularly threatened with charges if they go anywhere near the creeks on

their land. This is an unacceptable situation to the people I represent, where

in their desperate effort to save roads, bridges and in some cases homes, they

are being told to stay out of the streams. It's now past time for the DFO to

revise its policies regarding the management of creeks and streams in order to

make the safety of people and property truly paramount.

[1415]

NATUROPATHY

MacPhail: Today I want to celebrate the practice of naturopathy and urge all

British Columbians to embrace this wonderful science-based health care delivery

system. Naturopathy, of course, is a practice of medicine that promotes health

wellness and illness prevention, and that perhaps makes it apart from the other

practices of medicine in this province. It's not to pit one practice of medicine

against the other but to embrace all practices of medicine that are

science-based and accessible so that British Columbians can continue on the path

of increased health year after year.

Naturopaths,

of course, are medically trained for years and years and often are MDs with a

specialty in naturopathy. Many of us had the opportunity today to get tested by

the naturopaths, and the results were interesting, to say the least. What we do

know is that in our health care system, when there is so much pressure

[ Page 7591 ]

on services and when access is an issue, it makes sense for British Columbia

to embrace the practice of naturopathy so that people can have health care where

they need it, when they need it.

Naturopathy

epitomizes that through all towns in British Columbia. They offer a wide range

of medical services that are of benefit to all of us. I must say, though, that

with the tests that were done on all of us today, there's probably some bad news

for the B.C. Liberal government, and I'm sorry I have to bring that bad news to

them. It turns out that in all of my tests, I'm extremely healthy, and I'm going

to be around for a long, long time. [Applause.]

ECONOMIC DEVELOPMENT IN LUMBY

Christensen: One of the privileges of being elected to represent

Okanagan-Vernon has been the opportunity to learn more about the communities I

represent outside of Vernon. Today I'm going to speak about the village of Lumby,

a community that is rightly proud of its roots in farming and forestry, a

community that has experienced more than its fair share of disruption and

adjustment occasioned by the tragic decline in the forest industry in this

province, but a community that epitomizes the value of small-town living and is

working hard to provide the foundation for continued and future opportunity and

success for its citizens.

The legacy

of the 1990s for Lumby was the closure of the three major mills that provided

the bulk of employment for people living in the community. The village of Lumby

has responded to the disruption of the 1990s with an aggressive plan to renew

infrastructure, examine new economic opportunities and market the area as the

gateway to the Monashees.

Downtown

revitalization is a cornerstone of the village's efforts to diversify its

economy. Phase 1 of Lumby's downtown revitalization proceeded prior to the last

election and was completed in 2001, totally funded by the village. Phase 2 will

proceed next spring, thanks to the contribution of this government under the

Canada–British Columbia Infrastructure Works program.

In addition

to the revitalization of its downtown, the village of Lumby is proceeding with

long-planned upgrades to its water system with a contribution of over $600,000

from the provincial government, and the village is currently developing a

strategy to upgrade its sanitary sewer operations. Such infrastructure

initiatives are essential to the progress of any community, as we all know.

Over the

last six months Lumby has hosted the Canadian hang-gliding and paragliding

championships and has also been the site of a week-long international Norton

motorcycle rally, attracting over 1,200 motorcycle enthusiasts from around North

America. What shines through in these events is the dedication and community

spirit of the people of Lumby. The many volunteers ensure that all events are a

great success and that visitors feel welcome and leave eager to return. The

village of Lumby has faced challenges, but it has met them head on, positioning

itself to grow and continue to offer a quality of life that is described quite

nicely by the village's slogan: "Simply the best."

Mr.

Speaker: That concludes member statements.

Oral Questions

LOSS OF INCOME ASSISTANCE BENEFITS

J. Kwan:

Yesterday the Premier told us how many people won't get kicked off welfare, but

he would not say how many people will. Well, here's the FOI. The numbers are

blanked out. Will the Premier finally tell us how many people will lose income

assistance? Just fill in the blanks.

[1420]

Hon. M.

Coell: Every day in British Columbia, people on income assistance are

finding employment through programs of this government. This government has

helped tens of thousands of people on income assistance find employment, and

we're going to continue to do that. We're going to continue to do that. But I

would say to the member — if she read the Vancouver Sun today about the

great opportunities coming to British Columbia, the great job opportunities that

are coming — that people on income assistance will have an opportunity because

of this government's training and employment programs to participate in….

Interjections.

Mr.

Speaker: Order, please.

Hon. M.

Coell: The members fail to realize that people on income assistance deserve

to succeed in British Columbia, and they will.

J. Kwan:

British Columbians who need help deserve to get the help they need, irrespective

of some arbitrary decision on a time limit where they will be kicked off of the

only social safety net that's left. "The most open and accountable

government in Canada" — that was the promise, but continued evasion and

denial is the reality. The result is growing concern about what the government

knows but refuses to acknowledge.

The leaked

FOI says that roughly half of the people impacted…

Interjections.

Mr.

Speaker: Order, please.

J. Kwan:

…will be families with kids. I can see why the Liberal government might be

embarrassed. We're talking about the health and well-being of children.

To the

Premier: put aside the spin. What were the numbers blanked out on the FOI? Fill

in the blanks.

Hon. M.

Coell: There are 22 categories of people who are exempt from time limits

with this govern-

[ Page 7592 ]

ment's policies. They are persons with disabilities, persons who temporarily

have a medical condition, single parents with children under three, pregnant

women, people participating in training-for-jobs programs. If someone wants…

Interjection.

Mr.

Speaker: Order.

Hon. M.

Coell: …to participate in a training employment program, they're exempt.

We're encouraging people to seek work. We're encouraging people to get the

training they need to find success in British Columbia, and they will, despite

the opposition's protests.

J. Kwan:

Thousands of children in B.C. live below the poverty line — one in six. Many

live in troubled homes. Now the Premier is cutting income assistance to those

families, leaving very little for the children. Many British Columbians are

wondering what possible purpose it serves to cut income assistance for poor

children. Many also wonder why a government that promised openness and

accountability is behaving so cowardly now.

The

question is to the Premier. It is very simple. Just fill in the blanks of how

many people he is intending to kick off of income assistance the next fiscal

year.

Hon. M.

Coell: Every day people on income assistance are finding employment in this

province through programs developed by this government….

Interjections.

Mr.

Speaker: Order, please. Order, please. We'll wait until there is quiet in

the chamber. Please proceed.

Hon. M.

Coell: People leaving income assistance are leaving for jobs that pay three

times what they were on income assistance. If the members were the least bit

interested in child poverty, they would know that the best social safety net is

a job and that the best thing we can do is help people find employment. And

that's exactly what we're doing.

CRIME RATE IN B.C.

MacPhail: Well, here's one that the Premier can answer. Yesterday the

Premier said crime is on the decline in British Columbia, but I read the

government report, and that's not true. Let me quote from the report. This is

from the government report.

In the

first quarter of 2003 the crime rate increased by 4 percent over 2002. In the

year 2000 property crime hit a low of 63.9 crimes per thousand people. In 2002

the figure is approaching 65 crimes per thousand people, and it's on the rise.

In 1999 there were 35.5 non-violent Criminal Code offences per thousand British

Columbians. In 2002 that figure jumped to 38.8.

Why did the

Premier yesterday stand in this Legislature and suggest that crime is going down

when in fact, according to his own report, it's going up?

[1425]

Hon. R.

Coleman: The fact of the matter is that crime is always a challenge, and

statistical reporting of crime is also a challenge.

Interjections.

Mr.

Speaker: Order, please.

Hon. R.

Coleman: You can find statistics anywhere and do whatever you want to do

with them, but the fact of the matter is that we have improved the

infrastructure of policing in British Columbia through our initiatives like

PRIME-BC, which are actually going to let us target enforcement to crime in this

province and actually target it where it needs to be. We are making the

improvements that are necessary so the police will be able to deal with the

issues in and around crime in a five-year plan to make this province a better

place.

Mr.

Speaker: The Leader of the Opposition has a supplementary question.

MacPhail: There seems to be quite a disconnect these days between the

Solicitor General and the Premier. Yesterday the Premier said crime was going

down. We actually read his own government's report. Today the Solicitor General,

who took great pride in saying that everything was fine, said: "Oh, you can

do whatever you want with statistics."

Well, here

are some more statistics. It's a very simple matter. From 1996 to 2000, property

crimes in British Columbia declined dramatically. Now this government is

reversing that trend. According to the government's own numbers, the crime rate

is going back up for the first time since 1993. Can't tell the truth on the

economy…

Interjections.

Mr.

Speaker: Order, please.

MacPhail: …can't tell the truth on income assistance…

Interjections.

Mr.

Speaker: Order, please.

MacPhail: …can't tell the truth on crime….

Interjections.

Mr.

Speaker: Order, please.

Hon.

member, let us remain parliamentary while we ask our questions. Please proceed.

[ Page 7593 ]

MacPhail: The Premier can't get the facts straight on the economy. He can't

get the facts straight on income assistance. He can't get the facts straight on

crime, even from his own reports. Can the Premier point to where, in the New

Era , he promised to increase unemployment, increase homelessness, increase

hunger and increase crime?

Hon. G.

Campbell: I welcome the opportunity to remind the member opposite that for

the first time in the history of the province, over two million people are at

work. I welcome the opportunity…

Interjections.

Mr.

Speaker: Order, please.

Hon. G.

Campbell: …to point out that after that member's government's dismal

decade, in the last two years we've created over 100,000 jobs in this province.

I welcome the opportunity to say again today what I said yesterday.

Interjections.

Mr.

Speaker: Order.

Hon. G.

Campbell: The peak of property crime was in 1996. There were 86.7 offences

per thousand people, and in 2002 it is 64.9 offences. That is a trend down, as I

said yesterday.

I also

pointed out yesterday that, in fact, as people find work, as they move off

income assistance into the workplace, as they create a better quality of life

for themselves and for their families, crime continues to go down. That's what

we are going to continue to build on: a safer, secure society based on a strong

economy in British Columbia.

Interjections.

Mr.

Speaker: Order, please.

DEVELOPMENT OF

AQUACULTURE INDUSTRY

Trumper: My question is to the Minister of Agriculture, Food and Fisheries.

It has now been over a year since the moratorium on aquaculture was lifted, yet

there are still no new fish farms.

Interjections.

Mr.

Speaker: Order, please.

Trumper: This industry has untapped potential to create jobs and to

stimulate the economies of coastal communities up and down the Island,

particularly in the west coast communities such as Ucluelet and Tofino which are

in my riding. Can the Minister of Agriculture, Food and Fisheries tell us why,

despite the enormous potential, we still have no new fish farms?

Hon. J.

van Dongen: At the provincial level we have a very comprehensive application

process for both relocations and new sites, and provincially those are processed

through Land and Water British Columbia. They have a time frame in which to do

the referrals and do the processing, and they have processed a great number of

relocations and new sites. The real issue is the Canadian environmental

assessment…

[1430]

Interjection.

Mr.

Speaker: Order, please. Order.

The Leader

of the Opposition has had her turn in question period. Please extend the

courtesy to others.

Hon. J.

van Dongen: The real issue is the Canadian environmental assessment process,

which is handled by DFO. That is a very complex process. It duplicates a lot of

the requirements at the provincial level. It is a very serious holdup.

We have

applications that have taken over two and a half years and have not come

through. We are working very actively with the federal minister, federal deputy

ministers and associate deputy ministers to break this logjam and get these

applications processed. We're very acutely aware of the economic needs in the

member's community and other coastal communities. We will work hard to get this

logjam broken.

GOVERNMENT AID FOR

B.C. CATTLE INDUSTRY

Nettleton: Unfortunately, the B.C. beef producers are still in dire straits

from the continued fallout from the mad cow situation. Alberta, Manitoba and

Saskatchewan are not waiting for the federal government to make the first move

to bring the BSE aid up to a level that will better meet the needs of all

suffering producers. They are proactively providing assistance from the

provincial coffers and are pressing the federal government to meet their

obligations. Indeed, they are upping the ante in the name of compassion.

Even though

there are differences in operation between B.C.'s beef industry and that of the

prairie provinces, the B.C. government's $2.3 million assistance package is

minuscule compared to Alberta's extended assistance of approximately $100

million, not including the federal contribution, and Saskatchewan's $20 million

to extend the BSE recovery program, plus another $20 million in loans and cash

advances. Manitoba's similar BSE extension package amounting to $110 million in

assistance and incentives and loans….

Mr.

Speaker: Order, please. Order. Order. Order, please! Would the member now

please put his question.

[ Page 7594 ]

Nettleton: I certainly will. Granted that Alberta's ranching industry is….

Mr.

Speaker: Now, please.

Nettleton: Here's my question, Mr. Speaker.

Mr.

Speaker: Thank you.

Nettleton: In light of the minister's previous statement that he is looking

into following Alberta's lead in offering further assistance to our cattle

industry, can the Premier tell the cattlemen in B.C. what steps he is taking to

extend and enlarge the BSE assistance in this province beyond the stringent

limitations of the federal effort which is of little benefit to B.C. ranchers

and producers? Mr. Premier?

Hon. J.

van Dongen: Our government has been very, very active on the BSE file,

including prioritizing, getting the border open, which is the only lasting

solution. Starting with the Premier's conference in Kelowna, our Premier,

together with the three other western Premiers, was very instrumental in getting

the $460 million BSE recovery program, which was really very, very instrumental

in getting the Canadian beef industry on its feet.

We have

deferred lease payments for grazing.

Interjection.

Mr.

Speaker: Order.

Hon. J.

van Dongen: We have been flexible in terms of grazing arrangements. We have

worked very actively with the federal government and other provinces to make

money available on the CAIS program. There is an interim advance program that we

have pushed. We are actually issuing cheques to producers, and we are actively

working with the federal government on a cull cow program.

I say to

those other provinces: if they had worked together with us and the federal

government, we would have had the cull cow program a lot sooner than we have it.

We will continue to push to have that program in place very shortly.

EMPLOYMENT STANDARDS IN

AGRICULTURE INDUSTRY

Stewart: Last summer the Minister of Skills Development and Labour and the

Minister of Agriculture, Food and Fisheries announced a partnership agreement

between the B.C. Agriculture Council and its member organizations in an effort

to improve employment standard compliance to protect farmworkers. Since this

announcement, there have been suggestions that changes to the employment

standards regulations may negatively affect some farmworkers. Will the minister

responsible for labour explain why these changes were made, and will vulnerable

farmworkers be better off with these changes?

[1435]

Hon. G.

Bruce: We take this part of the ministry very, very seriously in respect to

protecting vulnerable workers. Within the agriculture community, particularly

the sector that we've been dealing with on the berry side, we've put together a

very aggressive program. We did, as the member mentioned, have an MOU signed

amongst the agriculture community. But with the berry side, to make sure that

people were paid, we've brought in a program of direct deposits where all farm

labour contractors have to have direct-deposit programs in place for their

employees.

We've also

the appropriate people in the field who can speak the language to explain their

rights. We've also made sure that farm labour contractors are bonded. Those that

find themselves in contravention of employment standards are now, today, faced

with mandatory fines — of which some have already received fines in respect to

not having direct-deposit systems in place. Those mandatory fines, as you

remember, are $500, $2,500 and $10,000.

[End

of question period.]

Petitions

Nettleton: I have with me here today 11,000 petitions, in addition to 12,000

petitions that were submitted earlier, requesting that government protect and

enhance the scope of practice for naturopathic physicians.

Reports from Committees

B. Lekstrom:

I have the honour today to present the second report of the Select Standing

Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private

Bills.

I move that

the report be read and received.

Motion

approved.

Law

Clerk:

"October

28, 2003:

"Your

Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing

Orders and Private Bills begs leave to report as follows: one, that the

preamble

to Bill Pr407 intituled Buron Construction Ltd. (Corporate Restoration) Act,

2003 has been proved, and the committee recommends that the bill proceed to

second reading; two, that the

preamble to Bill Pr408 intituled Buron

Construction

(1986) Ltd. (Corporate Restoration) Act, 2003 has been proved, and

the committee recommends that the bill proceed to second reading; three, that

the

preamble to Bill Pr406 intituled Ver-Tel Communications Ltd. (Corporate

Restoration)

[ Page 7595 ]

Act, 2003 has been proved, and the committee recommends that the bill proceed

to second reading.

"All of which is respectfully submitted.

B. Lekstrom, Chair."

Lekstrom: I ask leave of the House to permit the moving of a motion to adopt

the report.

Leave

granted.

Lekstrom: I move that the report be adopted.

Motion

approved.

Bills

Pr406, Pr407 and Pr408 ordered to be placed on orders of the day for second

reading at the next sitting of the House after today.

Orders of the Day

Hon. G.

Collins: I call Committee of the Whole House for consideration of Bill 78.

[1440]

Committee of the Whole House

ACCOUNTANTS (CHARTERED)

AMENDMENT ACT, 2003

The House

in Committee of the Whole (Section

B) on Bill 78; K. Stewart in the chair.

The

committee met at 2:41 p.m.

On

section

Christensen: I've just got a couple of general questions which I'll ask

under

section 1, because that seems to be where they'll best fit. I guess the

most general question in respect of the bill as a whole is: why is the

government proceeding with this bill at this point in time?

Hon. G.

Abbott: In response to the member's question, the Ministry of Advanced

Education is proceeding with this bill on the request of the chartered

accountants association. They've been looking at issues around their act for

some time, and what's being put forward here in Bill 78 certainly represents the

work they have done within their own body to modernize a piece of legislation

which has not been amended since 1987. Certainly, many of the features of this

bill are ones which will modernize an important piece of legislation for one of

the very important groups in our society. There are some additional benefits as

well. Among them, consumer protection will be enhanced as a consequence of the

bill, and further, the changes which are made in respect to the institution

rebroaden the mandate and broaden the role of the public in relation to the

institute.

Christensen: My thanks to the minister. I guess even backing up one more

step, in terms of this type of legislation, perhaps the minister can expand on

what the role of the Institute of Chartered Accountants is vis-à-vis the

public.

Hon. G.

Abbott: In a broad sense, the role of the institute is to ensure that

consumers are protected by having a standard of conduct which can be a reference

point, I guess, on issues about whether accountants have fulfilled their moral,

legal and other responsibilities in relation to their work. They also have a

vital role in respect of an educational process for the chartered accountants

themselves, with respect to their responsibilities in relation to the public.

[1445]

Christensen: I understand that many of these amendments have been brought

forward because of a desire on behalf of the Institute of Chartered Accountants

for some changes in terms of how they can regulate the profession and be more

modern in terms of some of their needs. Is there any sort of specific public

concern that's being addressed here, or is this generally a modernization

exercise based on what other institutes are doing in other jurisdictions?

Hon. G.

Abbott: I guess the short answer to the member's question is that,

certainly, this was part of a move to modernize and update the legislation under

which the chartered accountants operate. There were also, though, issues around,

for example, the Enron collapse, which called into some question or called into

focus some issues around the area of licensing and disciplining in the area of

accounting practices. Certainly, if there was a prompting or triggering event in

terms of this legislation moving forward, perhaps that was it, but the general

move to modernize was well underway in any event.

The ability

to license professionals and firms, to discipline where codes of conduct were

breached or not achieved are important issues not just for chartered accountants

but for a whole range of professionals. This brings the chartered accountants

into the modern view of how those things should be conducted. There's an

increase in the scope of authority, all aimed at providing enhanced consumer

protection for British Columbians as well as modernizing the act for chartered

accountants.

Christensen: As the minister is aware, there are a number of accounting

designations. There are CAs, CGAs, CMAs. I think there are CPAs, but not

necessarily in Canada. There are probably others. Can the minister comment just

briefly on whether there's general support among the wide range of accounting

professions for these types of changes? Is there any disagreement in terms of

the need for these changes?

Hon. G.

Abbott: I'm advised that in the process of preparing this bill, broad

consultations were undertaken, including with the CMA group and the CGA

[ Page 7596 ]

group as well as chartered accountants, and there is general support for

proceeding with this bill.

Christensen: In terms of the public as a whole, as a consumer of services

that a chartered accountant firm or individual would provide, can a consumer

expect this to have any sort of real impact in their day-to-day dealings with

chartered accountants? Or is this more just along the lines of the institute?

[1450]

Hon. G.

Abbott: The answer to the question is, clearly, yes. This will improve the

relationship of consumer protection to the profession of accountancy. It will, I

think, very much improve confidence because it broadens the scope and broadens

the authority of the profession to regulate its members and regulate the

activities of its members. It provides for opportunities to discipline where

that is necessary. It provides for increased fines in relation to breaches of

codes of conduct and so on. Clearly, it is a step forward in terms of managing

those issues, which happily only rarely come forward but, when they do, do

require action by the professions themselves.

Christensen: I just have one more question in terms of this particular

section. This move forward in terms of the profession of chartered accountants

in British Columbia — is it something other jurisdictions in Canada have

already undertaken? Or are we doing something unique?

Hon. G.

Abbott: In addition to the broad consultation which was undertaken and which

I pointed to earlier in response to an earlier question from the member, the

staff in Advanced Education also looked very closely at the legislation and,

certainly, the experience of other provinces and jurisdictions in relation to

regulation, discipline, and so on, within the accountancy field. Alberta and

Ontario, for example, have recently undertaken changes in their respective acts

in relation to the chartered accountants, and what you see before you in the

current bill is reflective of the experience there but also in other

jurisdictions as well.

Section

1 approved.

section 2.

Christensen:

Section 2 of the bill references what will be a new

section 4

of the act. There's a change there in terms of how the council of the institute

is put together. Can the minister just clarify what the change is and the

reasons for it?

Hon. G.

Abbott: There is a modest change that's contained within the new

section 2

from the past. It is certainly consistent with the goal that was referenced

earlier of increasing public participation and public involvement in the

regulation of the profession. That is that now the three lay members of the

commission or institute will be lay members. They will not be accountants. They

will be, generally speaking, from the public as opposed to members of the

profession.

Christensen: What qualifications can we expect those lay members to have in

terms of their role in protecting the public interest?

[1455]

Hon. G.

Abbott: The character of the lay members — and it's difficult to be too

prescriptive about this, obviously…. When potential lay members of the

institute are being considered, the board resourcing development office would

look, as they do with other appointments, at a range of issues — for example,

what educational qualifications the potential lay members possess; what their

experience is in fields perhaps related to accountancy, which might come into

play here. Although again recognizing that we're not looking for accountants

themselves, they will be represented in the other six members of the institute.

They would be looking at the experience, the objectivity and the interests the

candidates might bring to bear and which might be used to enhance the skills

package that goes into making any board successful.

Section 2

approved.

On

section

Mayencourt:

Section 3 relates to the powers of the institute. I just wonder

if the minister could give us a little bit of an overview of what the institute

can do in order to protect consumers and the public.

Hon. G.

Abbott: The role of the institute is a vital one in relation to the conduct

of its members. In the first instance, under the terms of the bill now being

considered by the House, the institute will be able to set standards of

competence and qualification and be able to measure up their members against

that and, of course, against the code of conduct which is embraced by the

profession.

Where there

is evidence or an allegation of a breach of any of those things, obviously, the

institute can investigate and provide, where it's appropriate, discipline in

accordance with the provisions applied in the bill.

Mayencourt: I was reading that what this bill is really about is actually

extending the liability from an individual accountant to also include a firm —

in other words, an accounting firm. Can you explain the rationale for that?

[1500]

Hon. G.

Abbott: I appreciate the member raising the important issue of liability,

which pops up in, it seems, just about every area of public policy these days.

The member is correct. The provisions of Bill 78 will make firms accountable to

the institute, not just the

[ Page 7597 ]

individual members. Firms now will be accountable to the institute for their

work as well.

Almost

invariably, audits are signed off by firms rather than by individual auditors,

and so I think it's consistent with the approach that has been undertaken in

virtually every other jurisdiction to extend this to firms. Again, not only was

there a broad consultation with respect to the development of this bill but also

a long look at what is being done elsewhere. Certainly, what's being done here

is consistent with the kind of approach to accountability which has been

embraced in Alberta, Ontario and other jurisdictions.

Mayencourt: I thank you for your answer. Certainly, protecting consumers and

the public is of very great importance to me and to all members of this

Legislature. I wonder if the minister could please explain what kinds of

penalties for non-compliance these firms might have to pay.

Hon. G.

Abbott: Again, consistent with the consumer protection aspects of this bill,

there is an increase in the level of fines or the discretion to impose fines —

for members, from $10,000 to $25,000; for students, from $2,000 to $4,000; and

because it's a new category, up to $100,000 for firms.

Clearly,

the public has every reason to expect that when they engage a professional

accountant, they can expect competence and they can expect ethical conduct.

Where on those rare instances the profession should fall short of that, this

bill provides for increased penalties to ensure that kind of behaviour is not

repeated.

Mayencourt: Those are pretty substantial penalties. I'm not sure if you

could, as part of my next question, just let us know if that's consistent with

other jurisdictions. That's the first part of my question. Sometimes there are

real bad actors. Sometimes there are individuals who pay the fine and continue

to breach the code of conduct and what have you. What kind of powers will the

institute have with respect to those real bad guys who we really want out of the

business in the interests of protecting the public?

[1505]

Hon. G.

Abbott: Again, I think that as the member noted, in rare instances we do

have people occasionally breaching professional rules of conduct or breaching a

law for that matter. In those instances and particularly when breaches are

repeated…. That is a situation, obviously, that the profession wants to

discourage because the profession, in its own best interests, wants the public

to be completely confident of the work of the professionals who are members of

their institute and of their profession.

Among the

steps the institute might take where they encounter a breach or repeated

breaches of the rules is that they can certainly suspend a licence — with

conditions or without conditions, as the institute chooses. They may completely

remove the licence if the seriousness of the breach merits that, and they could

bar an accountant from membership permanently, should they choose, where a

serious breach has occurred.

So there

are real teeth in this bill in addition to the monetary penalties that were

outlined earlier. Again, this is all about having people feel entirely confident

about the competency and the professionalism of the chartered accountants.

Mayencourt: I wonder if the minister could speak for a moment about the

increased powers to create bylaws here and to actually implement them a little

bit more quickly. In debate earlier in second reading, we talked about the fact

that the institute could, in fact, introduce bylaw changes and have those

ratified at a future annual general meeting. Why do they need that power, and

what safeguards are in there to protect members of the chartered accountant

profession?

Hon. G.

Abbott: I think the enabling provisions here in respect to making bylaws at

a time between annual general meetings are really very much a part of the

character of modernizing this bylaw after no changes since 1987. Obviously, if

we look back to '87, there's a whole realm of technology that has speeded up a

lot of business processes since 1987. It's important that we empower the

institute to act quickly, because in today's modern world, with the speed at

which business is conducted, it is necessary at times to be able to act quickly.

The

previous legislation had the bylaw-making power attached only to annual general

meetings. We believe it's important to modernize it in respect to bylaws

relating to the appointment of committees, special general meetings, fees,

voting procedures, appeal procedures, standards of conduct and competency, and

qualifications and procedures for admission to membership and enrolment as a

student.

These are

all areas where again, recognizing that we're dealing with chartered accountants

who are attempting to manage issues within their own profession, it's certainly

consistent with other accountability mechanisms in this legislation to provide

that bylaw-making power for the institute in those areas.

[1510]

Mayencourt: Does government have a role in the bylaws? Specifically, we have

a self-regulating industry here, and I think there needs to be some sort of

safeguards for the public with respect to those self-regulating bodies. Most

legislation we've brought forward has contained some provisions for government

to reach in when something has kind of gone awry. Are there provisions in this

bill for that?

Hon. G.

Abbott: The member's question is a good one. There is a safeguard contained

in the legislation which provides that the institute, where they undertake a

bylaw outside of their annual general meetings, must file with the minister

within 30 days a copy of the bylaw. Government is then given a time limit of 45

days to disallow, if that is the appropriate response.

[ Page 7598 ]

Mayencourt: There was one other question I had, and it had to do with…. I

think we refer to them as associate members of the institute, people who may not

have the CA designation. What's the rationale for that? Is that something the

industry was asking for?

Hon. G.

Abbott: The answer is yes. This is the product of a request from the

industry.

Mayencourt: I'm wondering why they would want that.

Hon. G.

Abbott: I think I understand the member's question. The bill is structured

as it is so that people who are not chartered accountants, strictly speaking —

CMAs, CGAs or people who just describe themselves as accountants…. It gives

people the option of coming under the regulation of this bill.

Section 3

approved.

On

section

B. Kerr:

I've just got a question that you maybe could clear up for me on

section 4,

section 8(2). It says: "Without limiting subsection (1), the council may

make bylaws respecting the following…." Then it goes on to say:

"…the voting rights, if any, of members in a class…." But then

we've given the council…. They make the rights relating to bylaw, and they

have to then take it to the members to vote at some time, but it's in effect at

the time they make the bylaw.

I guess my

question is: if they make a bylaw that's in effect relating to the voting rights

and then they take it to the meeting to vote, what takes precedence — the old

voting rights or the new voting rights?

Hon. G.

Abbott: Staff and I would like you to repeat the question, if you would. We

just need a little additional clarification.

B. Kerr:

section 8(2)(a)(ii), it says the council may make bylaws respecting the

voting rights, if any, of members in a class under

section 14. But once it's

made the bylaw, that bylaw holds until the annual general meeting. So the bylaw

comes into effect as soon as they've made it, because council is making that

bylaw.

[1515]

My question

is: if that's in effect, when notice goes out for the annual general meeting

outlining the voting rights of the members and the members don't want those

voting rights, what takes precedence?

Hon. G.

Abbott: I think we've captured the member's question, and we think the

answer is that the bylaw would have a force and effect until the AGM. It would

have precedence. Were it overturned, disallowed, at the AGM, then obviously it's

struck. But until the issue was considered by the institute, we believe the

bylaw would have effect under the provisions of the bill.

B. Kerr:

I guess my question is: what if the bylaw restricted the rights of some members?

Would those members whose rights are restricted by the bylaws be allowed to vote

at the AGM to protect themselves?

Hon. G.

Abbott: Again, further to the last answer, we believe the bylaw would have a

force and effect in relation to its members. Presumably if it was around an

issue of, for example, voting rights, the bylaw would prevail until any one of a

number of things happened: (

a) it may be sustained by the membership; (

b) it

could be overturned by the membership, in which case the bylaw would no longer

have force and effect.

The third

possibility would be the one that the member for Vancouver-Burrard's question

referenced, which is what safeguards there are in relation to bylaws being

passed outside of the AGM time period in a case where there was some

controversy. Perhaps this could happen. Occasionally there may be controversy in

the accountancy profession as well. I don't know.

In a case

where the issue of voting rights came to the fore as a product of one of these

interim bylaws, the minister would have an opportunity to look at that bylaw. I

think they have an opportunity, within that time limit of 45 days, to disallow

the institute's bylaw.

It's

difficult to imagine a scenario where that might occur, but the provision does

exist there for, presumably, aggrieved or disaffected members of the profession

bringing the issue to the minister. Theoretically, that could result in an

overturn of an interim bylaw of the institute.

B. Kerr:

Thank you very much, minister. That's a good answer. I think that would be the

protection.

Section 4

approved.

On

section

[1520]

Chong: A question on

section 5 amending

section 9 of the Accountants

(Chartered) Act, dealing with students. I know it is rather subjective, but I'm

wondering if the minister is able to provide additional clarification where the

council may determine one or more of the following: (

a) the requirements for

enrolling — I don't have a difficulty with that — or (

b) the curriculum of

studies, again, but 9(c) "the fitness and character required of a person

applying to be examined or evaluated…." Would the minister be able to add

further clarification on that kind of criterion? It is rather subjective.

Hon. G.

Abbott: The reference to fitness and character is not a new reference. This

existed previously in the act guiding the profession. Nor is it, I think, that

unusual in other statutes which regulate professions. Generally, fitness and

character references are included into legislation to provide for those

extraordinary circumstances where, whether it's a product of behaviour or action

or something else…. It does provide an op-

[ Page 7599 ]

portunity for, essentially, the institute to question the fitness and

character of a candidate.

Sections 5

and 6 approved.

On

section

Chong: On

section 7, dealing with the old sections 12 to 14 in the original

act, the appeals, which is being adjusted here. A person who has failed to pass

an examination or an evaluation and feels aggrieved is able to appeal to the

Supreme Court within three months. Can the minister clarify whether that three

months is in any way extended in another part of the act?

The

reason why I ask is this. I should clarify that I'm not sure if this is the way

it still is. Oftentimes exams can be written at the end of a student year. It

could be April, May or June. Oftentimes people will go away and be on holidays

as opposed to waiting around for their exam marks or evaluation to come out.

Should that happen while someone's away — and they could be away on a

work-study project — and the three months lapse, and they're not aware of

that, there could be a problem. I'm wondering whether three months was put in

more as a guide and whether that is firm or whether there is an opportunity for

that appeal to be revisited. Can the minister just provide a little more

clarification on that?

Hon. G.

Abbott: The provision for reference to the Supreme Court within three months

existed in the previous act. It certainly is firm in that it's stated here and

is, therefore, firm. It is consistent, again, with what one would find in other

statutes of this character. I guess there has to be a guidepost in relation to

the time frame in which one can appeal, and three months is the tried and true

date for that.

[1525]

Sections 7

to 17 inclusive approved.

section

Hon. G.

Abbott: I move the amendment to

section 18 that's in the possession of the

Clerk.

[SECTION 18, by deleting the proposed

section 18 and

substituting the following:

Section 14 of the Accountants (Certified General) Act, R.S.B.C. 1996, c. 2,

is repealed and the following substituted:

Right to use name "C.G.A."

(1) A member of the association may use the designation "certified

general accountant", and may use after the member's name the initials

"C.G.A.", indicating that the member is a certified general

accountant.

(2) A person must not

(

a) use or display the designation "certified general accountant" or

the initials "C.G.A.", alone or in combination with any other word,

name, title, initial, letter or description, or

(

b) imply, suggest or hold out that the person is a certified general

accountant unless the person is a registered member in good standing of the

association.

(3) A person must not imply, suggest or hold out that the person is an

accredited public accountant or use or display the designation

"accredited public accountant" or the initials "A.P.A."

signifying that designation.

(4) A person must not imply, suggest or hold out that the person is a

certified public accountant or a certified public auditor or use or display

the designation "certified public accountant" or "certified

public auditor" or the initials "C.P.A." signifying that

designation unless

(

a) the person is a member in good standing of the association,

(

b) the designation or initials are used or displayed together with and follow

the designation "Certified General Accountant" or the initials

"C.G.A.",

(

c) the use or display is accompanied by the name of the jurisdiction where

the designation "certified public accountant" or "certified

public auditor" or the initials "C.P.A." were granted, and

(

d) the jurisdiction where the designation "certified public

accountant" or "certified public auditor" or the initials

"C.P.A." were granted authorizes the person to use and display them

in that jurisdiction.

(5) This

section does not apply to the use or display of a designation or

initials as provided for by

section 17 of the Accountants (Chartered) Act.]

Amendment

approved.

Section 18

as amended approved.

Sections 19

and 20 approved.

Title

approved.

Hon. G.

Abbott: I move that the committee rise and report the bill complete with

amendment.

Motion

approved.

The

committee rose at 3:26 p.m.

The House

resumed; Mr. Speaker in the chair.

Reporting of Bills

Bill 78,

Accountants (Chartered) Amendment Act, 2003, reported complete with amendment.

Third Reading of Bills

Mr.

Speaker: When shall the bill be considered as read?

Hon. G.

Abbott: Now, Mr. Speaker.

Mr.

Speaker: With leave. Shall leave be granted?

Leave

granted.

Bill 78,

Accountants (Chartered) Amendment Act, 2003, read a third time and passed.

[ Page 7600 ]

Hon. G.

Cheema: I call committee stage on Bill 77.

Committee of the Whole House

TENANCY STATUTES

AMENDMENT ACT, 2003

The House

in Committee of the Whole (Section

B) on Bill 77; J. Weisbeck in the chair.

The

committee met at 3:29 p.m.

On

section

J. Kwan:

I have some comments with respect to the Tenancy Statutes Amendment Act, 2003,

but I think I'm going to save most of those for towards the end of the debate.

section

1 we're dealing with, first of all, the manufactured home owners component of

the Tenancy Statutes Amendment Act, 2003. Many of the manufactured home owners

had concerns about Bill 71. They're concerned that the government's legislation

makes it easier for landlords to increase their rents or move them off land

where they've lived for many years, even decades, to make way for townhouses.

[1530]

One of the

specific concerns about Bill 71 was that it dictates one-year notice with the

equivalent of one year's rent. Homeowners were also concerned that landlords

were only asked to give three months' notice of a rent increase rather than six

months. Another concern is the rent increases of 5 or 6 percent that the

minister said he plans to mandate by regulation. If the pad rents get increased

every year, the very valid fear is that it will become too expensive for

homeowners. Manufactured home owners are in a sense a captive audience, if you

will, since finding a completely new park is not an easy task.

Manufactured

home owners requested a seat at the table in the drawing up of the regulations.

My question to the minister is: did homeowners get that seat at the table for

the drafting of the regulations?

Hon. R.

Coleman: We consulted them during drafting. They're in draft form. They'll

be consulted with prior to the regulations going forward.

J. Kwan:

Would the minister then agree that several of these concerns are not, in

fact, addressed in the bill? If that's the case, would the minister then commit

that those concerns will be addressed through regulation?

Hon. R.

Coleman: Some of the things will be covered in regulation; some will be in

policy. They're not specific to this piece of legislation in front of us. This

one is cleaning up some language and some other issues with regard to Bills 70

and 71 as they were debated last fall. Like I say, we've been consulting with

them and will continue to do so.

J. Kwan:

Can the minister provide a list to the opposition, in terms of the concerns

that have been raised by this constituency base, of which concerns are being

addressed through regulation, which ones are being dealt with by policy, etc.,

— just so we have a clear idea that their concerns are in fact being addressed

comprehensively?

Hon. R.

Coleman: The consultations are ongoing, and what's being addressed has

really got nothing to do with the debate on this particular piece of

legislation. I did say we would consult as we drafted regulation, which we've

done. They're in draft form now. They'll be consulted again before we put them

in place.

We've tried

to address the issues and concerns of both sides of this discussion. I'm sure

you'll hear from some of my colleagues, as we move through this legislation,

that the owners are particularly unhappy with the ministry because of some

changes that we've made to the legislation. Actually, I guess that when both

sides aren't particularly totally happy, maybe we've actually got some balance.

J. Kwan:

The interesting thing is that…. I'll just draw one example, because the

opposition had sent out information to various people who were concerned with

the original bill that was first tabled — Bill 71, the Manufactured Home Park

Tenancy Act — and also the Residential Tenancy Act. We have a litany of issues

that people had raised. In fact, the concerns that people raise…. I know that

many of those concerns were brought to the government members when we debated

those bills last spring. The problem was that the government members actually

didn't raise any of the concerns.

In fact,

the member for Vancouver-Burrard said, "Well, gee, the member" — me

— "for Vancouver–Mount Pleasant raised all those concerns already.

Therefore, I don't have to do anything," he figured. Then he went on to say

that because those concerns had been raised, everything is fine — with the

exception, of course, that he voted for the bill.

Mayencourt: Point of order, Mr. Chair.

The

Chair: Member for Vancouver-Burrard on a point of order.

Mayencourt: Actually, my comments are in Hansard , and they are not as

described by the member from Mount Pleasant. I would ask that she withdraw those

statements because they are untrue.

[1535]

The

Chair: Member, I don't believe that's a point of order, but you can

certainly have an opportunity to make your comments at a later date.

Mayencourt: Thank you very much, Mr. Chair.

J. Kwan:

Yes, it would be useful to learn the rules of the House. The reality is this,

with respect to what

[ Page 7601 ]

the member for Vancouver-Burrard actually did say. In fact, I'll actually put

it on record now. I was going to do that later, but let me just put it on record

now.

When I

rose to speak on this bill at second reading, I made the point that although the

opposition thinks it's a good thing that the government is admitting an error

and reversing itself, particularly on the issue around retroactive rent hikes,

those were concerns that, in fact, many people had raised on the issues related

to both the Residential Tenancy Act as well as the Manufactured Home Park

Tenancy Act.

At the

time, there was less than 24 hours to engage in second reading debate, without

warning, and I had suggested that for a proper debate to take place, for fulsome

debate to take place, it might be better to actually have more time between

first and second reading. But that was not to be, and the government decided to

call second reading with less than 24 hours' notice.

The

Chair: Member, would you take your seat for a second, please. I want to

remind the member that although we give a lot of latitude on

section 1, let's

get back to the actual content of

section 1.

J. Kwan:

Thank you, hon. Chair, and let me tie in the pieces for you. I'm talking about

issues around consultation, issues around what the government is doing with

respect to consultation. In the

definitions it really does lay out the whole

notion around tenancy and the parameters related to it, and therefore it would

be important to understand the context in which my questions arise, which is why

I'm bringing up these points.

With less

than 24 hours of notice, without warning, second reading was called. The ink was

barely dry, and with the introduction of the bill by the minister, Hansard was

only in draft form. We had indicated that stakeholder groups had not been

notified of the new legislation and were themselves, once we informed them,

scrambling to discern what — besides the flip-flop on rent hikes — was in

the bill.

The

response we got to these concerns merely proves, I think, the main point. The

government backbenchers' ability to debate this bill was clearly compromised. As

a matter of fact, only two members of the government bench even bothered to try

to raise the issues. We had the member for Vancouver-Burrard saying he didn't

know what the opposition was complaining about. He had plenty of time between 9

o'clock at night and 10 o'clock the following morning to read the bill in its

entirety and decided it was okay by him.

This, we

can only assume, was the same approach to the bill research that led the member

for Vancouver-Burrard to support the original flawed bill to begin with. Despite

that fact, as he freely admitted in second reading comments, he was "in

constant communication" with tenant representatives who were telling him

that the bill was flawed.

[1540]

The member

and indeed this minister like to make a big deal out of the consultations they

did after they passed Bill 70, but they conveniently forget that they also

boasted about all the consultations they did before bringing in the flawed bill,

when they ignored the concerns of the tenants and decided to side with the

landlords.

Despite the

valid concerns that the member for Vancouver-Burrard had admitted were raised by

tenants with him, he chose not to bring them to the minister's attention. He

says he chose not to do this — and I take him at his word on this — because

he felt it would be "redundant" of him to raise these issues as a

government backbencher after I had raised them as a member of the opposition.

This member then voted wholeheartedly for the entire flawed Bill 70. So I take

with a grain of salt the member's criticisms of concerns over having between the

hours of 9 p.m. and 10 a.m. to examine a brand-new bill.

Perhaps it

would be more convenient for the government if the opposition took the approach

of one of their colleagues who at second reading of the first residential

tenancy act said: "I don't have to go through the bill

section by section.

I think it's a good piece of legislation." That was a statement of the

member for Victoria-Hillside. That would certainly make the government's job

easier, less embarrassing. They wouldn't have to deal with stories in the media

like the ones about another bill, Bill 48, and how this government was giving

guaranteed access to the aquaculture industry for potential farming sites.

We in the

opposition take very seriously the job of examining government legislation, and

despite our limited resources, we will continue to do the work….

The

Chair: Member, please. I've asked you to get back to

section 1, please.

You're completely off topic here. We are talking on Bill 77 and

section 1. I'd

ask you to please confine your debate to that section.

J. Kwan:

Well, I'm linking these issues, Mr. Chair.

The

Chair: Member, you are linking everything but the kitchen sink here. I'd ask

you, please, to get back to

section 1.

J. Kwan:

Mr. Chair, we're talking about the issue, and I was asking the minister

questions around consultation. The minister says: "Don't worry. We

consulted extensively." In fact, the minister went on to say their members

— this Liberal bench, the MLAs from the Liberal government — said that they

will raise their concerns because they will bring them forward. The fact is that

the history of these bills we're debating — Bill 70 and Bill 71, which are

being amended through Bill 77 — was not brought up. Those concerns were not

brought up by these members.

So when I

ask the issues around consultation and its relationship to it, it is important

that I put it in the context that when the minister says those issues would be

raised by the members, in fact they were not. They were not under Bill 70, the

Residential Tenancy Act, and they were not raised under Bill 71, the Manufac-

[ Page 7602 ]

tured Home Park Tenancy Act, and now we have Bill 77 amending those two

pieces of legislation.

So to the

point, for the members: how it relates is the issue around consultation and the

absolute silence from the government side in raising concerns. There had been no

concerns raised that people brought to government MLAs' attention. They didn't

raise them, and that's a reality. Then they say: "Well, gee, I thought I

didn't have to raise it because you did it already." Then they turned

around and actually voted for the bill in its entirety, against the people and

their constituents who raised the concerns with them.

On the

issue around consultation, I find it, well, not trustworthy to take the word of

any of the government MLAs — including the ministers, I'm sorry to say —

when they say, "Don't worry; trust us; everything is fine," because

their practice has shown that they don't listen to people.

The

minister says, on the issue around consultation, that everything is being

addressed, so you needn't worry about it, when in fact I actually have a letter

from the Active Manufactured Home Owners Association dated October 22, 2003, to

the minister with the concerns around this bill. The minister says this bill

will not be dealing with any of the concerns that people raise, when in fact

that is not true. So let me just put on record the questions that the Active

Manufactured Home Owners Association had put to the minister, and I'd like the

minister's response to their questions.

The letter

is dated October 22, 2003, and it's addressed to the minister:

"All

manufactured homeowners are pleased and thankful that you're amending our

legislation, Bill 71, the Manufactured Home Park Tenancy Act, to remove the

provision for three-year retroactive rent increases. However, we're still very

concerned about the amount of your mandated, non-questionable rent increases.

We're not sure which act you were referring to in the Legislature on October

21 when you stated: 'Exceptional circumstances could be defined in many ways,

and I'm sure we'll discuss this in committee stage of this bill. Obviously,

higher taxes, higher utility costs — those types of things affect the

ability of a landlord to run a building. In order for them to have an increase

above what will be allowed in regulation, they would have to come forward with

the rationale and the backup to get those done by the arbitrators.'

[1545]

"The

act is not clear if we'll be able to attend and show the arbitrator that the

increases in taxes or utility costs have already been covered by the mandated

rent increase. Is this going to be another automatic increase given on the

presentation of the bills to the arbitrator without knowledge or input? On

behalf of manufactured home owners in this province, we're requesting if

automatic increases are mandated by law, rent control that they are, in our

case, given only on the first $100 of rent, which represents a very generous

operating allowance for the park. This can be verified by checking amounts

paid for strata or co-op fees in those types of parks, or arbitration of rent

increases is reinstated.

"Please

listen to the thousands of people who have sent in, on their own initiative,

petitions requesting that the government listen and respond favourably to this

position. We have more to lose than the park owners if the park fails. That is

why we are adamant that rent increases do not put people at risk of losing

their homes because of government-mandated rent increase allowances that are

excessive and unfair.

"Sincerely,

Joyce Klein, secretary-treasurer, on behalf of all district associations of

the Active Manufactured Home Owners Association."

On the

question, as it relates to

section 1 and as it relates to the issues that have

been raised by this group, hence the government consulted with them. Will they

be at the table in terms of the drafting of the regulations, and will their

concerns be addressed? How would it be addressed? Would it be by regulation or

through some other government policy or some other legislation at a later date?

Mayencourt: I wish to respond to some of the comments from the member for

Vancouver–Mount Pleasant. Is this the appropriate time to do that?

The

Chair: Proceed.

Mayencourt: The member for Vancouver–Mount Pleasant made some comments

about my comments in this Legislature, and I would like to make the point that

she should perhaps look at Hansard to see what I did say. I did not say

that my asking questions would be redundant. I said that it would be redundant

for me to repeat the questions that she had copies of and that she had simply

asked just a few moments ago.

Another

thing I did say in Hansard …. This deals with her comments about reading

the bill, coming into this Legislature, us not giving her enough time to take

stock of this bill and us not giving her enough opportunity to look it over. I

made comments in this House that I had received the bill at the same time as

her. I received it at 9 o'clock on the night…. I received this bill at the

same time as her, and I went to work that night because this bill means a whole

lot. This is a very important bill for my riding.

The

Chair: Members. Member for Vancouver-Burrard, please take your seat.

Mayencourt: Yes, sir.

The

Chair: I think we've got completely off track here with this

section 1. I

want to get back on track. I'm going to now ask the minister to stand up and

give a response to the question, and let's get back on

section 1, Bill 77.

Hon. R.

Coleman:

Section 1. I'll deal with the member's question. I just want to

make sure the House is understanding what

section 1 is about, so we know what

we're actually debating. It revises the definition of terms for the periodic

tenancy, which clarifies that a tenancy agreement must be ended in accordance

with the requirements of the act.

[ Page 7603 ]

currently worded, the definition allows for periodic tenancy to end by verbal

notice or other steps a party might take to end a tenancy. Our advice from

counsel was that that wasn't acceptable. It deals with the definition of

"registered mail," and it corrects the reference to Canada Post.

On the

tenancy side, it clarifies that a tenancy is premised on a right to possession

rather than actual possession, because in some cases the person actually

occupying the rental unit is different than the person on the tenancy agreement.

With regard

to the member's question on the consultation, that's how we actually got to what

the member's being critical of. That is, when we went out and talked to these

organizations, retroactivity was something we discussed. We've made it clear all

along that any extraordinary rent increases above what is set in regulation will

have to go to arbitration, and that will continue to be the case.

J. Kwan:

Specifically on the question around consultation with respect to the

drafting of the regulations, the minister actually said that he is in

consultation and that he will continue to be consulting with stakeholders on

this. My specific question is: on the drafting of the regulations related to the

rent increase component in terms of the amount — and that's what this letter

that I read off referenced — will they be at the table in terms of the

consultation, specifically with the drafting of the regulations related to that

issue?

Hon. R.

Coleman: They've been told all along that we're not consulting on the amount

and that that is a decision to be made by government when the regulations are

done. That hasn't changed in our conversations with them.

[1550]

J. Kwan:

Well, that's a shame, because the minister would like you to believe that

they are consulting far and wide. On the issues that stakeholders are

particularly concerned with that actually deal with the amount of the rent

increase and how it would impact them…. To a certain extent, it may actually

impact them to become homeless — to actually lose the site, the park they have

their home on — if the rent increases are too high and could not be sustained.

The pertinent issues that impact people's lives…. The minister just admitted

that he would not be consulting them on those issues.

I think

that is more than unfortunate, and it would make no sense to me. If all those

Liberal MLAs who are working hard on behalf of their constituents were, in fact,

speaking to their ministers, they would actually be standing up right now,

fighting to make sure they're at table on these critical questions and issues

they've raised that are of concern to them. Yet they're not. They're happy that

the stakeholder groups don't have a seat at the table on the matter most

important to them — namely, the issue around the amount of the rent increase

they might be faced with by regulation and legislation. Yet the government MLAs

are proud of the work they do. One wonders about this kind of representation for

the people.

Interjections.

J. Kwan:

The member for Vancouver-Burrard no doubt is proud of his record of not only not

raising the concerns for his constituents but voting against his constituents,

as he has demonstrated time and time again.

The

Chair: Member, I want to remind you again: please,

section 1. We're dealing

with

section 1.

J. Kwan:

Yes, thank you, Mr. Chair. And he is very proud of that fact.

The

Chair: Member, I asked you to please confine your remarks to

section 1.

We'll get back to the debate on

section 1 of Bill 77.

J. Kwan:

Absolutely, Mr. Chair, but from time to time I must admit I do get sidetracked.

The member for Vancouver-Burrard is heckling me, so I get sidetracked, and I

feel compelled to respond. I apologize, Mr. Chair. I do get distracted by the

noise around me, and I feel compelled to respond from time to time. So I do

apologize, Mr. Chair.

Interjections.

The

Chair: Member for Vancouver–Mount Pleasant,

section 1.

J. Kwan:

No, it's not that I don't heckle. I heckle, but hey, when people heckle from

time to time, people respond. That's what happens. I'm doing that. Then they get

bothered and troubled because I respond as well.

It is

perplexing to me for government members to say, "Don't worry; everything

will be fine; regulations will be in place; people will be consulted," when

in fact for the most pertinent issue people need to be consulted on, they're not

at the table. No government MLA, including the member for Vancouver-Burrard, is

standing up to advocate to make sure they have a seat at the table.

Section 1

of the bill is the

definitions section. I know there's another bill concerning

manufactured homes. It's a Finance bill, Bill 72, the Manufactured Home Act,

which was introduced last week. I'd like to ask the minister if he could explain

the interrelations of these two bills and whether any of the concerns raised by

the manufactured home owners about Bill 71 from the year 2001 are addressed in

this new Finance bill. Is there any relationship between these two bills, and if

so, what is it?

Hon. R.

Coleman: Let's make it clear: we did consult. We consulted with the very

people the member is

[ Page 7604 ]

actually quoting from. We consulted on the amount, but we did not tell them

what it would be because that hasn't been decided yet, because regulations

haven't been brought forward.

The fact of

the matter is that there are, in the act, a couple of things. Obviously, if we

consulted and we took out retroactivity, they were at the table having that

conversation. The member wants to know with regard to how this bill affects each

section of Bill 71. Well, we can go through it

section by section. What we're

dealing with right now is some

definitions. We seem to be off topic. I don't

want to get off topic. I'm not here to redebate Bills 70 and 71; I'm here to

debate the amendments to those bills that are before the House in legislation.

[1555]

I can tell

the member that we have consulted, and we have said we would consult as we

finalized the regulations. At the same time, maybe they don't like the answer

they got during consultation, but to say they weren't consulted with is wrong.

They were consulted, and that's why we're here today with some of these changes,

particularly the retroactivity. When we brought forward the retroactivity, we

decided to clarify some issues in common law that were brought to our attention

by legislative counsel and by legal advice, which we're doing in this act. We're

moving forward.

J. Kwan:

Well, when the minister says that he's consulted with these groups, save and

except…. One of the key issues that the groups want to be consulted on is the

amount of the rent increase as the government will be bringing this in

legislation, and he just admitted on record to say that they would not be

consulted on that particular issue. It doesn't add up. You say you've consulted,

but on key issues that people want to be at the table to be consulted on, the

minister admitted that he won't be consulting them. We can check Hansard

on what he just said. We can check Hansard on that comment.

The

question I asked of the minister was around Bill 72 — whether or not there's

any interrelatedness with the new bill that was introduced last week, the

Manufactured Home Act, as it relates to Bill 77.

Hon. R.

Coleman: No direct relationship.

J. Kwan:

Under the definition of tenancy — and I quote from the act — it reads:

"'Tenancy' means a tenant's occupation of a manufactured home site under a

tenancy agreement and the rights and obligations of the landlord and tenant

during that occupation." The definition here has changed about the tenant's

right to possession of a manufactured home site under a tenancy agreement. Could

the minister explain why the language about the rights and obligations has been

removed?

Hon. R.

Coleman: The previous definition read: "'Tenancy' means a tenant's

occupation of a manufactured home site under a tenancy agreement and the rights

and obligations of the landlord and tenant during the occupation."

Legislative counsel's advice was that the second part of that sentence was

unnecessary because the rights and obligations of the landlord and tenant are

contained in the tenancy agreement.

J. Kwan:

So is it safe to say that it's just a language issue and that it has no

substantive impact in terms of the changes between — I shouldn't call it the

old act — Bill 71 versus this amendment?

Hon. R.

Coleman: Under "changing occupation," it does, because it can

affect who's allowed to be on the site, and that's why it was done. On the

others it has no impact whatsoever.

J. Kwan:

Would one read this change in definition with

section 5 in terms of the

amendments that are being put forward in

section 5, or are they completely

separate?

Hon. R.

Coleman: This bill?

J. Kwan:

Yes.

[1600]

Hon. R.

Coleman: Our understanding is that there is no impact, but unless the member

has a specific concern about the impact, it would….

Section 26 is landlord and

tenant obligations to repair and maintain, and it's basically some clarification

that was asked for by the parties.

J. Kwan:

I'll ask some questions under

section 5, then — when we move to

section 5. I

canvassed that question as it relates to

section 5 to see whether or not there's

anything substantive that I'm missing. The people who wrote the legislation and

the amendment, I would trust, might have more information than me in terms of

reading that. That's why I ask that question. So on that, Mr. Chair, I'm ready

to move on to

section 3.

Sections

1 and 2 approved.

On

section

J. Kwan:

Section 3 deals with the landlord's obligations surrounding terminating or

restricting services. How does this new language about "material term of

the tenancy agreement" — and that's a quote from the act itself —

change the obligations of the landlord? Or does it?

Hon. R.

Coleman: In the original drafting of the legislation, there was what we

determined was a drafting error, which really said that they could basically

restrict or terminate a service or facility that's essential to it. In this one,

the material term of the tenancy or essential services, in most cases, are the

same thing, but sometimes there is something that's so material to the

[ Page 7605 ]

tenancy agreement that you put it in as a term to the tenancy agreement.

The

drafting error was such that it could have been interpreted that the landlord

could terminate, restrict services or essential services, and this is actually a

drafting improvement so that they can't.

Hunter: I want to ask a question about the same section. I recall during

debate on the other bills, the original bills, that we were trying to seek some

new balance in the rental housing legal situation. We were trying to encourage

some investment in the rental housing market. Thirdly, and I think importantly,

it was to seek some plain language.

So I guess

my question to the Solicitor General is that I'm concerned that the rewording

is, perhaps, less plain than the original language. I think I understood his

explanation to the member for Vancouver–Mount Pleasant, but there is some

concern, as I'm sure the Solicitor General knows, that there are occasions where

factors outside of the control of the landlord, such as garbage service, may

change. The conditions of a garbage service provided by a municipality might

change; water billing might change. Even something almost as mundane these days

as cable service provisions might change — bulk service to manufactured home

parks and so on.

I guess I

would just like to hear again the explanation as to why this change was

necessary and whether or not the change is suggesting that landlords need to

deal with the issue of material changes for such items as service delivery in a

tenancy agreement. Are we leaving the door open for that or not?

[1605]

Hon. R.

Coleman: The industry would like us to actually list all the things we would

determine to be essential services to a tenancy — water, sewer, electricity,

etc. When we do that, we actually cause ourselves some problems in common law.

That's why they weren't defined that way when the industry asked us to actually

put that into the act.

This is

about the material change of a tenancy agreement or essential services, so

things like cable arrangements are not material to the tenancy agreement.

Garbage pickup could be something that wasn't material to a tenancy agreement,

because it could be in there that it was by contract, as determined by the

landlord in the tenancy agreement.

Certainly,

things like water and sewer, for the essential services of what would be the

requirements of life…. In most manufactured home parks, as we looked at it —

and actually all that I could find — each person had their own separate meter

for electricity, so it wasn't something that was part of the tenancy agreement

or an essential service that would be in the tenancy. It really comes down to

municipal utilities that a tenancy may be affected by. I don't know of many

municipalities that do the water for a manufactured home park on an individual

basis, but they do it on a property basis.

If there's

a substantial increase in that from municipalities, the ability is there to go

before an arbitrator and say, "I've had a substantial increase," and

cover your costs. We think that although it's not completely satisfactory to the

industry, we have to do this within common law. Their biggest concern is that if

we don't define it, then an arbitrator will decide it's otherwise. That comes

down to training and disciplining arbitrators. We've said we're going to do that

and have measurements for arbitrators moving forward. Although it's not what the

owners of manufactured home parks would ideally like to see, it is the balance

we have to achieve within the common law and our advice from legislative

counsel.

Hunter: I appreciate that explanation from the Solicitor General. I guess I

would then ask the question that — we're not satisfying the landlords, and I

don't know if we're satisfying the tenants — in a case of a service provision

such as garbage and the provisions of a garbage contract or a change to the

significant disadvantage of the landlord, is the landlord able under this

section, in the Solicitor General's view, to protect him or herself against a

large increase in costs that cannot be claimed back from the tenant by inserting

language in the tenancy agreement that could cover him or her for that

eventuality?

Hon. R.

Coleman: The garbage is actually a pretty good example, because it could be

in the tenancy agreement that the landlord, as part of the rent, provides

garbage removal. If the price of the garbage removal goes up and the tender

changes and they wish to go with another contractor, there's nothing stopping

them from doing that, because it's just a material part of the contract that

there be garbage removal. It doesn't say it has to be by a specific company or

service provider.

[1610]

If the

landlord decides outside the tenancy agreement, however, that now he wants to

make a material change to the contract because he no longer wants to include

garbage removal within it, then at the end of the term of the tenancy agreement,

he would have to negotiate that back or put it into the next tenancy agreement.

Certainly,

during the term of the tenancy agreement, that material change is not something

where you can just unilaterally say: "Tomorrow I'm going to charge you all,

in addition to your rent, for your garbage removal, even though it's already in

your tenancy agreement." That's what this

section deals with. If they wish

to change the service and it's not a material change to an agreement, then they

can do that, or if they need to tender it or change the costing to save

themselves money but provide the same service, they can do that too.

Section

3 approved.

On

section

[ Page 7606 ]

J. Kwan:

Section 4 deals with the removal of the phrase: "Except in accordance with

an arbitrator's order." The explanatory note says this change is to remove

the implication that arbitrators have the jurisdiction to issue restraining

orders. Was that implication unintentional?

Hon. R.

Coleman: Yes, it was. They don't have the jurisdiction.

Section 4

approved.

section 5.

J. Kwan:

Section 5 amends

section 26 of the Manufactured Home Park Tenancy Act to read

that the landlord must provide and maintain the manufactured home park. The

question is: is this the

section that replaces the rights and obligations

language from the definition of the tenancy that we were discussing under

section 1?

Hon. R.

Coleman: The current act says a landlord must provide and maintain. If for

some reason "provide" wasn't included…. So no — in answer to the

member.

J. Kwan:

Section 5(

b) adds a subsection to

section 26 that is numbered (6), but my

version of

section 26 of the act has only four subsections now. My question is:

is this a drafting error? Maybe I'm not reading the right version of Bill 71.

Hon. R.

Coleman: Our version of the bill does have five, and that's why it's 26(6).

We'll gladly provide her with that copy, and maybe that would clarify it for

her.

J. Kwan:

There's something amiss here, because the version I have of Bill 71 is dated

October 22, 2003, off the government's website, and it only has four

subsections. I won't read into the record what they are. I'm actually perplexed,

because from the government's website, it seems that this Bill 71 is not the

version I'm working off of. It's not the same version the minister is working

off of — that is, the one that's posted on the government website that I

pulled up. I'm not quite sure what's amiss here with regard to that.

Hon. R.

Coleman: We think that the subsection (5) was a House amendment during

debates and may not have made it onto the copy on the website.

J. Kwan:

That's the work we're developing our questions from. I hope there aren't

substantive differences in terms of what the real version is that one should

work from versus what the government has put on the website for the public as

well as the opposition to work off of. That's a bit of a problem. I hope that's

not a recurring problem and that it will be corrected very quickly.

[1615]

The

subsection (6) that is being added is said to correct an omission in Bill 71

concerning the landlord's obligation to comply with legal standards, regardless

of whether the tenant has knowledge of a breach. Was this also an oversight, or

did this result from consultation? Is this a brand-new thing that is added in

Bill 77?

Hon. R.

Coleman: It's in

section 10(2) of the current Residential Tenancy Act, and

it was inadvertently omitted in the Manufactured Home Park Tenancy Act.

Sections

5 and 6 approved.

On

section

J. Kwan:

In this

section from Bill 71 being amended,

section 1(

e) is repealed and

replaced with the language: "the tenancy agreement is frustrated."

Could the minister please advise: why have the specific conditions been removed?

Is there a definition of "frustrated" provided in the act? What

exactly does that mean?

Hon. R.

Coleman: The member remembers in the debate that we actually had some

discussion — I think it was even with the member from Vernon — in and around

the definition of "frustrated." Our advice coming back was that this

was the common-law discussion and to try to codify the common-law

definitions

always leaves something out. So you're better off just to deal with the term

"frustrated" and let your arbitrators, based on training and

judgments, come to the decision of what constitutes the frustration of the

contract.

J. Kwan:

Well, then, where did this change come from? More specifically, was it just the

issue that was raised by the member from Vernon? Or was it from the broader

consultation from the public in terms of the clarity that needs to be put in

place with respect to the issue around "frustration"?

Hon. R.

Coleman: I should clarify. The member from Vernon, probably in a committee

versus the Legislature, brought up the term "frustrated," just in case

it's not in Hansard . But I know as we've dealt with this discussion with

regard to this act, what really was brought up to us by a couple of our

arbitrators, who felt that in trying to codify things, there were other examples

that would also frustrate a contract or would cause them difficulty in defining

that. By codifying it, you may leave something out by accident that actually

needed to be there for the protection of either one of the two parties to the

contract.

So it was

felt that by just having the tenancy agreement identify the tenancy and the

relationship and using just the term "frustrated," under the common

law it would be better to do it that way than to try and codify it.

J. Kwan:

Subsection (2) is also being repealed. Could the minister please explain why?

Hon. R.

Coleman: This subsection is deleted to eliminate the unnecessary reference

to common law. If

[ Page 7607 ]

a landlord accepts arrears of rent or compensation of a use and occupancy

only, the tenancy agreement is not reinstated. That remains unchanged. The

section was new to the Manufactured Home Park Tenancy Act and so, however, was

widely interpreted as significantly changing the common law, which was not the

intent at the time of writing that section. That's why.

Hunter: I was going to ask a question on

section 37(1)(e), but I understood

the Solicitor General's answer to the member for Vancouver–Mount Pleasant, and

I will let that one go — although I will observe that I think the objective of

the use of common language so that landlords and tenants can understand the act,

not just arbitrators, is an objective which is perhaps set back a little bit by

the change. But that's okay.

[1620]

I am,

though, concerned about the repeal of 37(2). Perhaps the Solicitor General could

answer this question: what, in

section 37(2) as it now stands in Bill 71 —

and, by the way, in Bill 77…? It's the same changes proposed under Bill 77 in

a subsequent

section of this bill. What exactly in the language that exists now

in both Bill 71 and Bill 77 is offensive to the common law to the extent where

we would have to repeal it and open the door to some pretty wide-ranging

arbitral room that has created problems in the rental housing and the

manufactured home market in the past?

Hon. R.

Coleman: I don't actually disagree with the intent of his comments. However,

we were attempting to codify something that would actually affect common law,

and our legal advice was not to do it within the act. That's why it's coming

out. I realize it might be interpreted that it would actually clarify some

things, but in common law the acceptance of arrears on a bill doesn't

necessarily mean that the service continues to be provided, because you do have

a tenancy agreement in this particular case. It's one of those ones that I as

minister struggle with, because I actually do ask the same question as the

member, and then I have to acquiesce to the legal advice I'm given with regard

to the section.

Hunter: Epithet lawyers, I guess, is my initial response. I don't want to

pretend to be a boy lawyer, because I'm not, but isn't the role of the

Legislature to provide clarification to common-law concepts? Does not the

specific overrule the general as a general rule in arbitral, paralegal,

quasi-legal and legal affairs?

Hon. R.

Coleman: Yeah. Generally, we have common law with regard to the history of

residential tenancies in B.C. When you try and do things in plain language, and

then you actually try to codify something, sometimes there is the unintended

consequence on the other side of codifying, which actually takes out a number of

other things that can happen or should be able to happen, and a decision that

may be good for particularly the landlord or the tenant….

attempted to codify it. We did have some discussion, and we've had continued

discussion about this for some time with me, frankly, at times pushing back to

see if there's a way to do it. At the end of the day it really does come down to

the common law, and if you try to codify something, sometimes you have these

unintended consequences. So advice was not to do it and to remove it, and we

took the legal advice that we were given.

[1625]

Hunter: I thank the Solicitor General for his frankness. I'm not equipped to

continue this argument and I don't intend to, but I would ask that if the

specifics originally in Bill 71 and Bill 77 — if you permit me, Mr. Chairman,

to refer also to the same provisions in a subsequent part of this bill at this

stage…. If the provisions reflected our intent and our willingness, our desire

to see the arbitral field narrowed, is this an area that the Solicitor General

is able, through some other instrument, to make clear to arbitration panels —

that this is the policy and these are guidelines you will apply in such cases

that

section 37(2) is originally intended to address?

Hon. R.

Coleman: Generally, you only put in legislation things that would modify the

common law. Previous legislative counsel did give us some latitude in the

initial drafting of legislation, and you should know this legislation has been

through a number of drafters over the period of time. The advice now is: don't

codify things in common law. You could use legislation to modify it, but don't

codify it because it causes all kinds of other problems.

We know the

issue with regard to this for the owners of manufactured home parks. I get that

they would like to have it clarified. We are pretty strong on the fact that

we're going to have very good training for our arbitrators; we're going to

expect performance measures from them. They will be educated on the applications

with regard to these types of sections so that we can't end up with some of the

difficulties we've had in the past. We'll have very strict policy guidelines for

them to follow with regard to arbitrations and how we will deal with these

issues, rather than trying to codify it in legislation.

Sections 7

to 10 inclusive approved.

section

J. Kwan:

Section 11 deletes the requirement for a landlord to specify a particular date

when applying to terminate a tenancy agreement. Why is the minister getting rid

of this requirement?

Hon. R.

Coleman: The present wording appears to require a landlord to specify a

particular date in their application to end the tenancy early. The problem with

that is if the arbitration can't actually take place before the date, then

they're specifying a date where the arbi-

[ Page 7608 ]

trator hasn't had the opportunity to rule. The actual arbitration decision

specifies the date, so we're setting it up so the arbitration actually specifies

the date, depending on the circumstances.

Sections 11

to 15 inclusive approved.

section

J. Kwan:

Section 16 concerns the arbitrator's ability to extend time limits. It replaces

section 59 in the Manufactured Home Park Tenancy Act with the new

section

Section 59 of Bill 71 — at least, my version — reads as follows:

"59

(1) An arbitrator may extend or modify time limits under this Act if

exceptional circumstances exist.

(2) As restrictions on subsection (1), an

arbitrator may not (

a) extend the time limit set by

section 39 (4) (a)

[landlord's notice: non-payment of rent] for a tenant to pay overdue rent, or

(

b) extend, beyond the effective date of the notice, the time limit to apply

for arbitration to dispute a notice to end a tenancy."

The

minister himself in second reading highlighted that this would be an area of

concern, and we have indeed received a copy of correspondence sent to him by

the manufactured home owners association, raising the concerns about the

application of this language — only "in exceptional

circumstances."

Could the

minister please define the term "exceptional circumstances"?

[1630]

Hon. R.

Coleman: It's for, let's say, somebody who was in hospital for an operation

and couldn't get there to get the documents in or for the service of application

for arbitration and review decisions — those types of exceptional

circumstances. It's not because you weren't available, but it's because you have

some exceptional circumstances you can give to the arbitrator that made it

impossible for you to do certain things or receive certain things.

J. Kwan:

Is there a list of what would be deemed to be exceptional circumstances, and if

so, would the minister provide that?

Hon. R.

Coleman: We didn't put it in the legislation, obviously, because we're

getting back to the codifying of things. Somebody might have another exceptional

circumstance. We usually deal with that in policy guidelines. I'll review what's

there. As we process, I will provide the member with the policy guidelines.

J. Kwan:

I guess in the policy guidelines, that would be provided, and it would just be

guidelines that would be used in that context. Who would then actually make the

call in determining what is deemed to be an exceptional circumstance? Would it

be the arbitrator, or who would do that?

Hon. R.

Coleman: Only the arbitrator may extend or modify the time limits, so it

would be the arbitrator.

J. Kwan:

I know I asked this question before when we debated Bills 70 and 71 — that is,

the issue with respect to precedent-setting. Especially in light of the comments

from the minister — that is to say, he doesn't want to codify things with a

list of items in legislation — whether it be in this instance around

exceptional circumstances or in the previous discussion that we had around

frustrated issues…. As far as I recollect, arbitration decisions are not

precedent-setting. Therefore, it's up to each arbitrator to interpret things and

make the decision accordingly, but it does not bind decisions in the future by

other arbitrators. Isn't that correct? If that's the case, then really, it's

subject to the

interpretation of each arbitrator — what they might deem to be

exceptional circumstances or any other term such as "frustrated" that

was commented on earlier.

Hon. R.

Coleman: I think the member's correct. We have policy guidelines, and then

performance measurements we'll have for arbitrators, but they're paid to make

decisions based on the facts in front of them. They make those decisions, and we

expect those decisions obviously to be made based on the best information —

and to make those decisions in a professional capacity. We set the guidelines,

but we don't actually set the decisions.

[1635]

J. Kwan:

It's very subjective in its nature. I have actually in the past, as an advocate

for tenancy issues, gone before an arbitrator with very similar sets of

circumstances and ended up with different results from different arbitrators. In

the instance where, let's say, one arbitrator might deem — let's use the

example — medical reasons as an exceptional circumstance which they would

accept as a reason for the utilization of this act, another arbitrator decides

that that's not the case. In the event something like that happens, what

recourse do people have who are taking the matters to arbitration with these two

different kinds of

interpretations? Or do they have any recourse at all?

Hon. R.

Coleman: We try and get that through the policy guideline and the

performance measures. One of the challenges, as the member knows…. I've had

the same experience. Sometimes what appears to be the same case between two

different arbitrators actually gets different decisions. Sometimes it could be

just on how credible the witnesses were that the arbitrator on one case was

dealing with versus the credibility of the witnesses in another case.

We pay

these people to make decisions based on facts, so we give them the policy

guidelines — the policy guidelines will outline some of the circumstances —

and then leave it, obviously, open. If there is something exceptional over and

above what we thought could be defined, it could also be considered. We wouldn't

make it so that it was impossible for them to consider other circumstances where

there might be exceptional circumstances that haven't been previously defined.

[ Page 7609 ]

We think

that by basically measuring, training, using examples on policy guidelines as we

train our arbitrators and increase their level of professionalism, and the fact

that we will obviously be monitoring this…. We are hoping we can get better

decisions with regard to that balance the member describes.

J. Kwan:

When the minister says he'll be monitoring this, how will he be doing that? Will

all the arbitration decisions be forwarded to the ministry so that you will be

able to get a sense of what the decisions are and so, therefore, be able to

monitor it? How will that monitoring process take place?

Hon. R.

Coleman: No, I won't be reading the decisions and trying to decide that. We

expect to have a director at the branch who will have the ability to assess that

and will be able to deal with concerns with regard to the performance of

arbitrators. If we set in place performance measures, like anything else we

measure, we will measure that according to those performance measures. It's the

last thing I as a minister — or anybody who ever would be a minister in the

future that would receive this file — would want: to be actually reading

arbitration decisions and trying to make that determination.

I think

it's important that the branch runs in such a way that people understand there

are performance measurements and policy guidelines that were put in place so

people can make most of these decisions without a lot of controversy, because

they'll have some training and measurements to go with them. If we find we have

obvious performance difficulties, then we would deal with that as we did any

other personnel issue.

J. Kwan:

Section 59(2) provides that a tenant might have withheld the rent in good faith,

either for emergency repairs or under an arbitrator's order. Is that correct? Am

I reading this correctly? Perhaps the minister can advise how this change came

about.

[1640]

Hon. R.

Coleman: It was pointed out to us after we'd done the debates and

legislation. We wanted regulation that…. Although the provision in the act is

that the rent is due and you have to pay it, in actual fact, if there was an

extension agreed to by the landlord for a payment that came past the five-day

limit, we didn't actually have that covered off. Or if there was an amount that

was unpaid, it was deducted by the tenant because of a genuine belief that the

deduction was allowed for emergency repairs or under an arbitrator's order. So

if there was an order from the arbitrator from the previous month and they

deducted it and the landlord issued an eviction, it was felt we had to cover

those two issues off.

It allows

the arbitrator to record an agreement between a landlord and tenant that would

extend the time to pay the rent, but it also provides the arbitrator with the

ability to extend to the tenant in good faith as withheld payment of the rent

— for instance, the tenant carries out emergency repairs and deducts the

repair costs from the rent — but if the arbitrator finds out later they were

not emergency repairs so the tenant was not entitled to deduct the amount of the

rent — that sort of thing….

This

basically covers off those eventualities to take care of…. I recall in the

debates with the member there was an issue brought up: what if there was an

emergency repair deducted, how do we cover them all? That's what this does.

Sections 16

to 20 inclusive approved.

section

J. Kwan:

section 21 the two clauses from Bill 71 are being amended. They are sections

89(2)(

g) and (p). I won't read the changes into the record. This change does not

appear to be about the rent retroactivity issue. What is the reason for this

change?

Hon. R.

Coleman: There are two changes under

section 21. One is that it substitutes

the current RT regulation-making power regarding assignments and subleases

because there was some concern about the ability to actually have the

regulatory-making power. It's to clarify that we have the ability to have

regulation with regard to assignments of subleases in regulation.

The second

one is the one that removes the regulation-making power for the three-year

carry-forward of rent increases. That's

section 89(2)(p), which is under

section

21. The second

part is the one that removes the carry-forward of rent increases.

J. Kwan:

So effectively, the two substantive changes are the subsections I mentioned, (

g) and (

p) in 89(2).

Hon. R.

Coleman: That's correct.

J. Kwan:

Section 21, which changed

section 89(2)(p), is the retroactivity clause for the

Manufactured Home Park Tenancy Act, and it's expected the manufactured home

owners are pleased the minister has removed the provision for the three-year

retroactive rent hikes. As I mentioned earlier, though, they still have

expressed concern about both the amount of the rent increases and the fact that

the rent increases are, in their words, not questionable.

As I put on

the record earlier, a letter was written from the stakeholders dated October 22

to the minister where they made two requests. I've raised those issues with the

minister. I would ask the minister to reconsider the notion of including these

stakeholders at the table with respect to the notion of the amount we're dealing

with, because that is of paramount concern to these individuals.

I'd like to

ask the minister this question. Specifically with respect to the request of the

manufactured home owners, and that is to say, "If automatic increases are

mandated by law" — that is, in the case of manufac-

[ Page 7610 ]

tured homes, increases be given only on the first $100 of rent — the

manufactured home owners association suggests this will represent a generous

operating allowance for park owners. The homeowners also point out that

excessive rent increases put people at risk of losing their homes and that

homeowners have much more to lose if a park fails. Was this opinion specifically

raised through the consultation process the minister had embarked on?

[1645]

Hon. R.

Coleman: That was the specific input from the Active Mobile Home Owners

Association.

J. Kwan:

I would make a final pitch, then, on behalf of this stakeholder group for the

minister to address their concerns seriously and through regulation, because

rent increase…. It is not just the issue about the retroactivity of the rent

increase that is of concern, as mentioned. It really is the amount as well, and

that has tremendous ramifications for people if the amount is exorbitant. It

could force someone out of their home as a result.

Section 21

approved.

section

Mayencourt:

Section 22 amends the

definitions of four different terms within

this act. "Registered mail" I understand. That's probably just a

correction of the reference to Canada Post Office and changing that to Canada

Post. We also change the definition of "periodic tenancy,"

"residential property" and "tenancy." Could the minister

please explain to me why these changes have been incorporated into this act and

what they accomplish?

Hon. R.

Coleman: Three of them are the same as what we just discussed in the

manufactured home park with regard to it, but I'll read out basically my

understanding of it so that the member has it on the record.

The revised

definition for the term "periodic tenancy" clarifies that the tenancy

agreement must be in accordance with the requirements of the act. As currently

worded, the definition allows a periodic tenancy to end by verbal notice or any

other steps a party might take to end the tenancy agreement. That was a

clarification for both acts.

"Registered

mail" corrects a reference made to Canada Post under sub (b).

"Residential property" clarifies the definition of residential

property to specifically include the rental unit itself and related groups of

buildings, not just the building in which the rental units are located. In (d),

"tenancy" clarifies that a tenancy is premised on a right to

possession rather than actual possession, because in some tenancies the tenant

may never actually occupy the rental unit. Those were clarifications basically

for the purposes of making the tenancy agreements work and so people have a

clearer understanding.

Mayencourt: I got the first three. This last one, "tenancy" — I

refer to it. Tenancy is premised on the right to possession rather than actual

possession. I don't quite get what that means. Can you please expand on that?

Hon. R.

Coleman: It's to clear off a situation where, for example, somebody signs a

lease and doesn't actually move in for 30 days. They actually haven't moved in

yet, but they still have the rights and conditions under a tenancy agreement. Or

in the case of a lease where it's allowed to be sublet without agreement by a

landlord that they could sublet and the tenancy agreement continues, it could be

a completely different party in the unit paying the rent. It clarifies those

type of circumstances.

Section 22

approved.

section

Mayencourt:

Section 23 amends Bill 70,

section 4(

b) and (

c) with respect

to…. I guess in the case of (

b) it's with respect to an educational

institution. It could be others, I guess. The second one is…. We're changing

it from "landlord" in subsection (

c) to "owner of that

accommodation." I'm wondering if you could please tell me what the benefit

is of those two changes.

[1650]

Hon. R.

Coleman:

Section 4(

b) clarifies that this exemption from the act applies

only to living accommodations provided by an educational institution to its

students or employees — i.e., student-employee housing.

Under

subsection 4(

c) it clarifies that this exception from the act applies only when

the living accommodation is shared with the owner. As currently worded, Bill 70

exempts many of the downtown eastside hotels because the act's definition of a

landlord includes a resident manager, who in many hotels shares bathroom or

kitchen facilities with other hotel tenants.

It's really

not a change in existing policy from the existing RTA. The new act applies to

residential hotels and rooming houses in which tenants share bathroom or kitchen

facilities with the landlord or resident manager.

I guess to

clarify it further, the exception is that you can sometimes get too far down in

definition, and you can actually unintentionally exempt people from being

protected under the act. This is to protect those people in SROs on the downtown

eastside within the act.

Section 23

approved.

section 24.

J. Kwan:

section 24, it appears to clarify what the government intended in its

original section,

section 18 of the Residential Tenancy Act, which is to allow

landlords to ban all pets if required. It amends the

[ Page 7611 ]

RTA,

section 18, by replacing the terms "in a rental unit" with the

broader term "on the residential property." Was this included at the

request of landlords? And was it viewed as a loophole from the previous

legislation, to broaden the language from a rental unit to residential property?

Hon. R.

Coleman: It never ceases to amaze me when I do legislation. It was

identified not by landlords or tenants but by our own people in review of the

act. It could have been interpreted that a dog in the back yard was not in the

premises that were rented, and therefore certain applications of the tenancy

agreement wouldn't apply — something that basically closes a loophole that was

identified as a result of the last legislation.

J. Kwan:

Well, Mr. Chair, pet owners were extremely disappointed with the government's

Residential Tenancy Act changes. When Bill 70 was passed, pet owners said the

new act did nothing to provide for more pet-friendly rental accommodations but,

instead, gave landlords for the very first time the legal right to ban all pets

if they so desire.

Pet owners

were also unhappy with the new provisions that allow landlords the ability to

charge a half-month's rent in terms of damage deposit. What is more, Bill 70

gave landlords licence to charge this pet damage deposit for any and all pets

— right down to the ludicrous case of a tenant who may have a pet that is a

goldfish.

The reason

why I ask the question around this is that when I look to sections 24 through

27, which would deal with the pet issues…. I was looking for something that,

through the consultation process, particularly with pet owners, the minister

would come back to amend this Bill 77 to make it more friendly for pet owners.

As it turns out, that is not the case.

Section 24, as the minister just

established, is really to address a minor oversight, if you will. Perhaps I

should not say it is a minor oversight but an oversight in the previous bill.

It's

interesting to note that the government members — and I recall one particular

member, Vancouver-Burrard — rose in this House with respect to the pet

provision, saying that he must advocate for his constituents because it's of

great concern to his constituents. As it turned out, the bill itself and now the

amendment will actually do nothing, really, to address the concerns that have

been raised by the pet owners, and that is to make rental housing accommodation

more pet-friendly. In fact, it does not do that at all.

On that

note, I will be voting against

section 24 on division.

[1655]

Mayencourt: The minister has spoken about consulting with a number of

groups, including landlords and tenants and what have you. I'm wondering if, in

those consultations, either the landlords or tenant associations raised the

issue of the prohib