British Columbia Committee Hansard (Blues) — Thursday, April 12, 2018, p.m., Issue 113 (41st Parliament, 3rd Session)
20180412pm-CommitteeA-Blues
British Columbia — Debates (Hansard)
Third Session, 41st Parliament
(2018) OFFICIAL REPORT
OF DEBATES
(HANSARD)
Thursday, April 12, 2018
Afternoon Sitting
Issue No. 113
ISSN 1499-2175
The HTML transcript is provided for informational purposes only.
The PDF transcript remains the official digital version.
CONTENTS
Routine Business
Introductions by Members
Orders of the Day
Committee of the Whole House
Bill 5 — Community Care and Assisted Living Amendment Act, 2018 (continued)
Hon. A. Dix
L. Throness
J. Isaacs
Report and Third Reading of Bills
Bill 5 — Community Care and Assisted Living Amendment Act, 2018
Committee of the Whole House
Bill 6 — Employment Standards Amendment Act, 2018
Hon. H. Bains
J. Martin
M. Hunt
A. Weaver
Reporting of Bills
Bill 6 — Employment Standards Amendment Act, 2018
Third Reading of Bills
Bill 6 — Employment Standards Amendment Act, 2018
Committee of the Whole House
Bill 11 — International Commercial Arbitration Amendment Act, 2018
Hon. D. Eby
M. Lee
Report and Third Reading of Bills
Bill 11 — International Commercial Arbitration Amendment Act, 2018
Committee of Supply
Estimates: Ministry of Labour
Hon. H. Bains
J. Martin
J. Thornthwaite
D. Barnett
Proceedings in the Douglas Fir Room
Committee of Supply
Estimates: Ministry of Environment and Climate Change Strategy (continued)
S. Thomson
Hon. G. Heyman
R. Sultan
J. Sturdy
P. Milobar
15:11:39, M. Lee, "or to be settled" changed to "are to be settled"
THURSDAY, APRIL 12, 2018
The House met at 1:32 p.m.
[Mr. Speaker in the chair.]
Routine Business
Introductions by Members
Hon. M. Farnworth: It’s my pleasure, in introductions today, to make acknowledgment of
something that I think is really remarkable. Everyone sitting in this House
has run for office, but very few of us in this House have actually run a
marathon. On Monday, the Clerk-at-the-Table, Kate Ryan-Lloyd, will be
running in the Boston Marathon.
An Hon. Member: Again.
Hon. M. Farnworth: Again, and no doubt setting a legislative record time.
I would ask all members of the House to wish her much luck and a very
speedy 26 miles on Monday.
Orders of the Day
Hon. M. Farnworth: In this House, I call continued committee stage of Bill 5, and in
Committee A, I call continued estimates of the Ministry of
Environment.
Committee of the Whole House
BILL 5 — COMMUNITY CARE AND
ASSISTED
LIVING AMENDMENT ACT, 2018
(continued)
The House in Committee of the Whole (Section
B) on Bill 5; L. Reid in
the chair.
The committee met at 1:35 p.m.
section 2 (continued) .
Hon. A. Dix: I just wanted to respond to the second part of the question that
the member from Chilliwack-Hope ended with before the lunch break. He
expressed concern, I believe, about the length of time information would
remain on the website about a particular child care facility or other
licensed care facility, whether it be child care or assisted living or
long-term care.
I’ll just say that updated information is provided on the website.
In other words, the reports posted will include any actions taken by
operators in response to the findings of investigations and inspections.
Those will be posted as well. If, as the member suggests, there are
minor infractions, the immediate response or the strong response of the
operator will be posted as well so that families will be able to see
that a problem was responded to right away.
While I appreciate his concern, I’d also add that in the case of
licensed child care facilities, they’re inspected at least annually, and
more frequently than that if there’s a higher level of risk, and a new
report gets posted with each new inspection. In other words, it’s both.
The information is just the information. It’s not either positive or
negative. It’s the information, fully provided, put in
context.
We don’t decide if something is major or minor. Instead, we say
what a violation might be, should it be a violation. As well, if you’re
a provider, it will also show year after year of inspections that are
very positive as well.
We don’t pass judgment. This is transparency. It allows people
seeking child care to get access to maximum information and to make
their own judgments about that information. It also assures that if
improvements are made, those improvements are reflected as
well.
L. Throness: I’m going to thank the minister for that. I’m going to surrender
the floor to my colleague from Coquitlam–Burke Mountain, who has a
couple of questions on this same section.
J. Isaacs: My questions are regarding
section 15.2, subsections (3) and (4).
Subsection (3) says a medical health officer “must promptly remove”
information respecting investigations, and subsection (4) says a medical
health officer “may remove” information respecting
inspections.
I’m wondering what the difference is. Why would one be “must
promptly remove,” and why would the other one be “may
remove”?
Hon. A. Dix: It’s the distinction between investigations, which must be removed
after five years, and inspections, which might provide a longer period,
which itself might be advantageous to the operator.
[1:40 p.m.]
In the case of investigations, we’ve said it’s five years, and
then it comes off, which is reasonable. Inspections can be left on for
longer, which may be something of benefit to the operator.
J. Isaacs: What would be an example of why an investigation would stay on
longer? Does the health officer have the authority to publish and
continue to have that information remain on the website? Whose
discretion is it to actually keep that for over five years?
Hon. A. Dix: To be clear, an investigation does come off after five years. In
the inspection case, it may actually be helpful to an operator — if you
had six or seven or eight years of inspections where there were good
results — to leave that information off. The discretion is with the
medical health officer.
L. Throness: I have something to add to that, Chair. Perhaps — envisioning the
worst-case scenario — a provider has a bad relationship with the health
authority, and the medical health officer decides on a whim to leave a
poor inspection, or an inspection by which they failed, on for more than
five years — which could damage that provider in a material way. Should
there not be some kind of limit that the government should place on its
own powers here?
Hon. A. Dix: In the case of investigation, of course, it is five years. In the
case of inspections, there’s a duty on all medical health officers to be
administratively fair. So I don’t really think the scenario being
envisioned here is one that would come about.
I think the purpose of it, the purpose of not having a limit on
inspections, is to show over a period of time that inspections have
taken place. That, generally speaking, speaks well of a licensed
facility that’s being inspected. That would be the circumstance.
Licensed facilities are inspected on an annual or, sometimes,
more-than-annual basis.
Really, all that this does is leave it to the discretion of the
health officer — the opportunity to do that. In the case of the
investigations, though, it’s clear. We’re putting a limit on five years,
and then they must come off.
J. Isaacs: The next one is
section 15.3(3), where it says: “A medical health
officer must promptly remove information that was published under this
section if a licence is subsequently issued in respect of the
community…facility.”
In other words, I’m reading this as: if an unlicensed daycare
operator — who has had an infraction in the past and has been publicly
reported on the website as unlicensed — obtains a licence, the
infraction that’s been posted on the unlicensed operator is dropped from
the website, dropped from scrutiny, dropped from public viewing, and the
newly licensed daycare operator — one and the same — begins with a blank
slate. Am I reading that correctly?
Hon. A. Dix: Here’s the purpose here. A family child care operator has three or
four children. They’re not aware of the limitation. It’s brought to
their attention by the health authority. Their infraction is not having
a licence. They get a licence. That deals with the issue of the
infraction. They didn’t know. They got the licence. So they go through
the process of the licence, which has a number of conditions, and then
they start afresh.
Someone who was unlicensed and gets a licence, in that case, would
not have the fact that they were unlicensed on their website. That’s the
purpose of it.
[1:45 p.m.]
It’s really an issue of fairness to family child care operators
who are acting in good faith. Under those circumstances, you wouldn’t
want — when they’ve done exactly what the system asks, not just now but
before now, over the last decades — to have that linger on their record
when the fact of their violation is the lack of a licence.
L. Throness: I want to follow up on that, reminding the minister that a law is
not primarily made for a lawful person. It is made for an unlawful
person and one who wants to not be reasonable.
Let me set up an absurd situation here. You have an unlawful
provider who provides terrible care. A child dies under the care of this
provider. You have investigations by the health authority, by the
coroner, by the police. There are big reports. There are news
items.
The provider says: “I want to make this go away.” So the provider
applies for a licence, cleans up the house or wherever they’re providing
care in and meets the conditions for a licence, and suddenly, all of
that record is wiped away. Isn’t that an absurd situation? It seems to
me that previously the law was being too harsh, and now it’s being too
lenient.
Hon. A. Dix: Well, it is an absurd situation. Under those circumstances,
clearly the person wouldn’t get a licence, so it doesn’t apply,
right?
The purpose of that provision — I responded to the member for
Coquitlam–Burke Mountain — was in the circumstance where a provider has
three or four children. It would be unlikely to be more. If they had
that big a facility, I think there’d be a greater expectation that they
would understand the law, just in general.
If they had that and they didn’t understand that two was the
limit, and then if they move to respond to it by getting a licence —
which is what they were required to do in 2015, in 2011, in 2007 and in
2018 — the very fact that they didn’t have a licence and they responded
to that would not be on the record. But the circumstances that the
member talks about, clearly, would lead to the person not getting a
licence.
L. Throness: There are criteria with respect to a licence. I would agree with
the minister that, under the happy circumstance where a person who
didn’t know about the licensing requirement gets one, that’s great. But
does an officer have the discretion not to issue a licence if the
applicant meets the criteria set out in the regulation?
Hon. A. Dix: Of course, I disagree with one of the member’s assertions. The law
is for everybody. It also allows all of us to understand what the
parameters of the law are and function in good faith and with
goodwill.
If you’re seeking a licence, you have to be of good character. In
this case, that test would not be met. You have to be able to provide
mature guidance to children. In the case that he talks about, that would
not be met. Of course, you have to have gone through a criminal records
check, and the results of that would have consequences.
I think, really, what this provision is…. As he noted, we’re a
little bit reversing our discussion of earlier. But in this case, this
is just to be fair to a number of family child care providers who are
seeking to follow the law and were unaware of it. That’s not a
reflection on their character. They were unaware of it.
Then, when they discovered that they were doing so, they moved
promptly and quickly to follow the law and become licensed under those
circumstances. Given the response, we don’t want the fact that they’ve
become licensed, and the fact that they may have acted as an unlicensed
child care prior to that — they’ve met all the tests of the licensing —
to be held against them. That’s the purpose of it.
L. Throness: I have one other question. Under 15.4(1)(b), “information
respecting licensed and unlicensed community care facilities generally,”
what information might be published that is not already named in this
bill — being name, address, results of inspections, investigations and
responses to those? What kind of general information would be published
under this section?
[1:50 p.m.]
Hon. A. Dix: There is nothing envisioned right now. This gives the
Lieutenant-Governor-in-Council the opportunity to add information should
that be deemed necessary in future. To add that by regulation, it would
require a regulation by the Lieutenant-Governor-in-Council.
L. Throness: I just have one further question on this bill. Often, regulatory
powers are conferred under the act by category, referring to specific
issues. I note that there is no regulatory-making power referring to
these sections in this bill or in the existing act. Is the minister
confident that the government has the power to make regulations that
refer to the clauses that are being amended in this bill?
Hon. A. Dix: Just in the interests of time, it’s under
section 6, the specific
provision we’re talking about. Let me just get it right. It’s sub
6(c.1)(i), which refers to
section 15.4(1). This paragraph will allow
regulation to be made to prescribe additional pieces of information that
must be published about community care facilities and/or assisted-living
residences in future as needed. That’s where the provision
is.
L. Throness: I have no further questions, Chair. I want to thank the
minister.
Sections 2 to 11 inclusive approved.
Title approved.
Hon. A. Dix: With thanks to the critic for his questions and for members who
contributed to the debate — my colleague from Coquitlam–Burke Mountain,
the seniors critic — I’d like to move that the committee report the bill
complete without amendment.
Motion approved.
The committee rose at 1:52 p.m.
The House resumed; Mr. Speaker in the chair.
[1:55 p.m.]
Report and
Third Reading of Bills
BILL 5 — COMMUNITY CARE AND
ASSISTED LIVING AMENDMENT
ACT, 2018
Bill 5, Community Care and Assisted Living Amendment Act, 2018,
reported complete without amendment, read a third time and
passed.
Hon. A. Dix: I call committee stage on Bill 6.
Committee of the Whole House
BILL 6 — EMPLOYMENT STANDARDS
AMENDMENT ACT,
The House in Committee of the Whole (Section
B) on Bill 6; L. Reid in
the chair.
The committee met at 1:56 p.m.
Hon. A. Dix: Perhaps the House could just adjourn for a few minutes while the
minister and his staff arrive for the committee stage.
The Chair: Thank you, Minister. This House will stand in
recess.
The committee recessed from 1:57 p.m. to 2:13 p.m.
[L. Reid in the chair.]
section 1.
Hon. H. Bains: Let me introduce my staff here first. Trevor Hughes is my deputy
minister, and Michael Tanner is labour policy, on my left
here.
I’d like to move an amendment. I move the amendment to
section 1
that is in the possession of the Clerk.
SECTION 1, by deleting the text shown as struck out and
adding the text shown as underlined:
Section 50 of the Employment Standards Act, R.S.B.C. 1996, c.
113, is amended
(
a) by repealing subsections (1) and (2) and substituting the
following:
(1) A pregnant employee who requests leave under this subsection
is entitled to up to 17 consecutive weeks of unpaid leave, which must be
taken during the period that begins
(
a) no earlier than 13 weeks before the expected birth date,
and
(
b) no later than the actual birth date
and ends no later than 17 weeks after the leave
begins.
(1.1) An employee who requests leave under this subsection after
giving birth to a child is entitled to up to 17 consecutive weeks of
unpaid leave, which must be taken during the period that begins on the
date of the birth and ends no later than 17 weeks after that
date.
(2) An employee who requests leave under this subsection after
the termination of her the employee’s pregnancy
is entitled to up to 6 consecutive weeks of unpaid leave, which must be
taken during the period that begins on the date of the termination of
her the pregnancy and ends no later than 6
weeks after that date. ,
(
b) in subsection (3) by adding “ who
requests leave under this subsection ” after
“ employee ” , by striking out
“ she ” and
“ her ” and substituting
“ the employee ” in both
places and by striking out “ subsection
(1) ” and substituting “ subsection (1),
(1.1) ”, and
(
c) by repealing subsection (5) and submitting the
following:
(5) If an employee on leave under subsection (1) or
(1.1) proposes to return to work earlier than 6 weeks after giving birth to
the child, the employer may require the employee to give the employer a
medical practitioner’s or nurse practitioner’s certificate stating the
employee is able to resume work.]
On the amendment.
Hon. H. Bains: Madame Chair, we will be recollecting here very
quickly.
The reason for this amendment that we’re proposing, an amendment
section 1, is it simply removes the references to “her” and “she” in
the pregnancy leave provisions to make the language gender neutral. I
want to make sure that the legislation is inclusive and recognizes
individuals who may be eligible for this leave but do not identify with
gender-specific pronouns.
Amendment approved.
Section 1 as amended approved.
section 2.
[2:15 p.m.]
J. Martin: Just a couple of things for clarification in this section. As a
bit of a data geek myself, I’m always kind of curious where numbers come
from.
Maybe you could tell the House, Minister, how we move from 35 to
61 in (b): “in subsection…by striking out ‘35 consecutive weeks of
unpaid leave…’ and substituting ‘61 consecutive weeks….’” Is there a
particular rhyme and reason why we ended up at 61?
E. Foster: I seek leave to make an introduction.
Leave granted.
Introductions by Members
E. Foster: It’s my great pleasure to introduce a group of grade 5 and 6 students
from the Vernon Christian School that are here visiting today to see the
Legislature. I was glad they were able to get into the House and actually
see what I think is the real meat and potatoes of legislation, which is the
committee stage.
As my former colleague from Surrey Dave Hayer would say, they are from
one of the best schools in British Columbia. Would the House please make
them welcome.
Debate Continued
Hon. H. Bains: Thank you very much for the question. It is to line up with the
federal EI benefit changes that the federal government brought in. It
used to be 35 weeks, and now a birth mother is entitled to 61 weeks.
It’s so they can take full advantage of the federal EI
benefits.
Section 2 approved.
section 3.
J. Martin: A similar type of inquiry. If we could get some rationale on the
move from eight weeks to 27 weeks and, we may as well at the same time,
the rationale for doubling 26 weeks to 52 weeks.
Hon. H. Bains: I think, when you look at the entire bill here, what we’re trying
to address, Member, is that as the federal government made changes to
the EI benefits to the birth mother and to the parents, they have
extended EI benefit levels — what they were entitled to before and what
they are entitled to today.
[2:20 p.m.]
What we are doing is making sure that whatever the federal
government did to extend the EI benefit for the birth mother and to the
parents, we allow them to have a leave corresponding to the benefits
that they’re entitled to, so every
section that you will see is exactly
what we are trying to do here.
How do we come up with those numbers? Again, we just follow the
federal EI benefit length of time they are entitled to so that they have
leave and enjoy being with their birth child. At the same time, when
they decide to go back to work, the job is there for them. The employer
is required to give them leave while they’re caring for their
child.
J. Martin: We do know that, from time to time, particularly when there’s a
change of administration in Ottawa, the eligibility for EI benefits is
tinkered with, not so much here but in other parts of the country.
Theoretically, it could happen here — a new administration or maybe some
type of reworking of the benefit package overall. What would happen if
that was to change? Would you have to bring forward amendments to
correspond once again to the federal numbers?
Hon. H. Bains: This provincial government will decide when and if we make any
changes to the Employment Standards Act. The federal government can make
changes, but then it will be up to the provincial government to either
comply with what they have done or decide not to do it. These changes
were made some time ago, but now is the time that we decided British
Columbian parents must be accommodated so that they can take advantage
of the benefits that they are entitled to under the EI
changes.
So we’ll wait and see. When they make changes, then I think it’s
up to us to make a decision whether we make the changes or
not.
Section 3 approved.
section 4.
M. Hunt: In
section 4, we’re dealing with, in the act itself,
section 52.3.
I want to look at sections (2) and (7) of that. I just want to read them
briefly.
It says: “
(2) If a child of an employee disappears and it is
probable, in the circumstances, that the child’s disappearance is a
result of a crime, and the employee requests leave under this section,
the employee is entitled to unpaid leave for a period of up to 52
weeks.” And (7) says: “If requested by the employer, the employee must,
as soon as practicable, provide to the employer reasonably sufficient
proof that the employee’s child has disappeared in circumstances in
which it is probable the disappearance is a result of a
crime.”
Sounds interesting, but my question comes to the practicality of
this. Let me give you two very simple examples. One, of course, a local
Victoria one from the 1990s, is Michael Dunahee. How would that apply in
his situation?
Or currently we have the situation happening in Montreal, where,
on March 17, a ten-year-old boy went off to see his friends and never
returned. The police figure that it was a drowning, so for the last
month, when the ice conditions are appropriate, they have been searching
the St. Lawrence River to see if the child is there. They have now
stopped the search of the St. Lawrence River, and the father is saying:
“Well, why aren’t you investigating an abduction on this?” They’re
saying: “No, this is just a normal disappearance.”
We certainly have members of the House here who are former police
officers or members of the RCMP. And certainly these investigations go
through a process. Usually it starts as a missing person. Then it might
escalate from a missing person across periods of time — this sort of
thing.
My question is a very simple one. Often during the process, we
don’t know that it’s criminal. We don’t have any of this. So we’re
saying that if a child disappears, they have no ability to get leave
until, all of a sudden, at some point in time, we can have a probability
of a crime. I would like the minister to please explain how this is
going to practically work in those types of escalating
situations.
[2:25 p.m.]
Hon. H. Bains: Good question, Member. I’d just say that most employers are very
reasonable people. All we’re trying to do through this bill is avoid a
situation where a 14-year-old or 15-year-old has a fight with a mom and
dad and just walks away. That’s not what we are talking
about.
I think what we are talking about is, as most other jurisdictions
have in their legislation right now, it provides leave for a similar
requirement. The purpose is to provide proof of an employee’s
entitlement. It’s not required in every case. It will not be required in
every case. What do you go by? You go by, in most cases, a copy,
perhaps, of the report to the police or documentation that the police
are investigating the disappearance as a possible crime. I think that
should be sufficient.
It is not hard evidence that a crime has occurred. The report to
the police, the examples that you have used, will fit that. It’s not
real hard proof that the police said: “We have evidence that somebody
did this.” I think it is just to satisfy the employer. In most cases,
the employer will not even ask for this kind of thing. If they do,
usually they do have a relationship with the employees, and they know
what the circumstances are.
I think it is something that is being practised in every
jurisdiction out there. I haven’t seen any big issue coming out of those
jurisdictions.
M. Hunt: While I certainly don’t disagree with the minister that most
employers are very practical and reasonable, especially in these types
of situations, my only concern is that the legality of what we’re
creating here says very specifically that this is “as a result of a
crime.”
Now, I realize that provincial bureaucrats are very generous
people that always interpret things very generously, but I would argue
that some of us are in politics because common sense isn’t always
applied to the rule of law. What can I say? This is the real world. As
soon as you put those words in there, you have given a tool that says to
the distraught parents: “You can’t get leave. You have no rights under
the Employment Standards Act to get leave in the midst of the trauma
that you’re in.”
Now, I do not disagree with the minister in any way, shape or form
over the example that he uses, where the parents have a fight with the
teenage kid and the teenage kid ups and leaves and that sort of thing.
That, to me, is so different.
We must be able to find, in all of the wonderful minds that we
have within the ministry, a better way to describe this than tying it to
crime, versus the illustration, which I think we all agree with, that
there’s a family disruption, the family is having an argument, and the
kid stomps off. In those cases, sure enough, they can be gone for years
as well. We certainly have lots of cases of that happening. But often in
those sorts of situations, again, the police find they don’t want to
communicate, but we know the person is alive and well. And it’s left
there.
[2:30 p.m.]
It’s just this piece of it that, to me…. I get very, very
concerned that it’s too restrictive in the way that the minister is
choosing it to be, and I would ask for the consideration of some other
language, rather than directly tying it to crime.
[R. Chouhan in the chair.]
Hon. H. Bains: Member, I fully understand, because I have been on the other side,
where an unreasonable employer can demand unreasonable kinds of
requests. But they are very few and far between. I must say
that.
Now, if you take a look, it says, though, that the employee’s
child has disappeared in circumstances in which it is probable that the
disappearance is a result of crime. That’s the language being used.
Probable is not must. So I think there is room here that we can rely on.
If these circumstances are such that it is probable that there’s a
crime…. Either a child is kidnapped or a child may have been in a
custody dispute and taken away against the law. Those are probable
causes, and that’s what employees are required to do. No more than
that.
A. Weaver: I have but one question, dealing with
section 4. It’s with respect
to 52.4 and the leave respecting death of a child.
First off, please let me commend government for bringing this
forward. It’s overdue, and it’s well received. I do appreciate this
legislation.
With that said, there are two aspects that I was wondering if the
minister has had the time to think about. Number 1 is stillbirths. The
bereavement that a family can actually feel from a stillbirth is
profound. The question is: does this legislation take into account
stillbirths? Number 2 is late-term miscarriages. Again, knowing people
who have suffered through late-term miscarriages, a child can be very
recognizable, and funerals can happen, and bereavement is very, very
real and long-lasting.
My question to the minister is: would this legislation cover
compassionate leave for both cases of stillbirth and late-term
miscarriages where bereavement leave is sought?
[2:35 p.m.]
Hon. H. Bains: The stillbirth part of the leave we haven’t changed. It still is
under the old act.
What we are dealing with through this act is a child born, dies or
disappears. So 52 weeks to 104 weeks. But that part, stillbirth, we
haven’t touched and haven’t changed.
A. Weaver: Further, to explore this, then, is there existing legislation that
the minister can appeal to that would take into account a request for
bereavement leave that falls under the case of late-term miscarriage?
Again, let’s suppose a very sad and unfortunate event occurs, and at
seven months a miscarriage occurs.
Is there legislation that would allow the mother or the father or
the parents to actually seek bereavement leave using existing law — that
is, that would be changed, like this, to have an extended period of
time? Or with the case of stillbirth, it might be slightly different. I
recognize that that might be covered by existing law. But if the
minister could expand upon these for me, that would be
helpful.
Hon. H. Bains: The existing act says this: “An employee is entitled to up to 6
additional consecutive weeks of unpaid leave if, for reasons related to
the birth or the termination of the pregnancy, she is unable to return
to work when her leave ends under subsection (1) or (2).” So there are
certain coverages under the current act. When we were talking about,
under this new act, child death or child disappearance, we weren’t
dealing with stillbirth or termination.
A. Weaver: I do appreciate that, and I thank the minister for bringing that
forth. As we move forward, I recognize — and I hope the minister and the
ministry recognize — that this is an issue that I think, frankly, should
be treated similarly, that stillbirths and late-term miscarriages are
very real children and very real bereavement occurs. If a baby were born
and were to die one day after birth, then that baby would be subject to
a different length, a period of time, than a baby who happened to be
born when they’re stillbirth.
Maybe, as we move forward, the ministry might think about
exploring this, because I know many personal cases, and I’m sure members
here also know personal cases, where there is very real bereavement.
Unpaid leave is taken, but protection for that is important.
Hon. H. Bains: Member, thank you very much for your point — well
taken.
As you know, these are the changes, as I said earlier, to match
the EI benefit changes that the federal government brought in, so that
our parents can take advantage for the period that they are entitled to
the EI benefits.
I must tell you that I’m working to look at the larger piece of
the Employment Standards Act. There are a number of consultation pieces
going on. B.C. Law Institute is one of them that is doing it. They will
be looking at a number of different areas to bring our employment
standards and employment laws into the modern day and the changing world
of today.
I think you can expect a lot more. We will be talking to you and
others to make sure that we bring those laws up to date.
J. Martin: Still on
section 4, it wasn’t that long ago that the UN convention
rights of a child defined a child as below the age of 18. The definition
of a child for the purposes of this legislation is a person under 19
years of age. Could the minister please explain why that particular
range was selected for the definition of a child?
Hon. H. Bains: We’re taking 19 because that’s the definition of child — a person
under 19 years of age. It’s consistent with B.C.’s Age of Majority
Act.
J. Martin: Just moving on, in subsection (3). If an employee is charged with
a crime that resulted in the disappearance of the employee’s child,
they’re not entitled to the leave, or if they’re already on leave, it is
cancelled.
[2:40 p.m.]
One of the realities in our justice system is that often there’s
an overzealous rush to stack charges, which very shortly thereafter are
thinned out. We have the very real possibility that the charge that the
employee is facing is not the charge 30 days later. Would there be any
revisitation of this person’s eligibility to be able to take
part in the
program?
Hon. H. Bains: I think a situation like this, Member, that you brought…. There
are different scenarios, and individual situations will
differ.
I look at one scenario. Say a child disappears, and there’s a
probable cause that it is crime-related. You go to your employer, and
the employer approves your leave. I think what the member was asking….
Later on, through investigations, that person is charged. Then, in
further investigations, the charges are dropped. What happened to the
child, right? I think that’s what the member is asking.
I think in that situation, you could apply for leave, and leave
would be approved according to this act. Then the employer can decide to
cancel your leave, because now you’re charged. But once the charges are
dropped, you could come back and say: “Look, I want my leave back. I
still need time.” Then your leave would be approved again.
J. Martin: Would you envision that, Minister, to be a similar outcome if
someone who was charged, maybe, on two or three counts arranged for a
hasty plea deal, pled guilty to the less serious offences, and the
offence that would have been connected directly to the disappearance is
gone?
[2:45 p.m.]
The person has pled guilty to lesser charges, and none of them are
relevant to the disappearance of an individual. It’s a typical scenario
in this type of situation where there’s an abduction and a weapon is
used in it. The abduction, being the more complicated charge, is
dropped, and the person would simply take the consequence of being in
unlawful use of a firearm.
Hon. H. Bains: I think what we are talking about here is crime — somebody charged
with a crime — and the disappearance of that child. If the parents get
charged under the Criminal Code for the disappearance of that child,
that’s what we are talking about. He or she could be charged for any
different reason. That has nothing to do with this.
All we are talking about is if the child has disappeared and one
of the parents who is requesting leave is charged relating to that
disappearance of that child. If other charges have nothing to do with
the disappearance of the child, then they don’t apply here. If they are
not charged for the disappearance of the child, then they are entitled
to leave under this act.
Hon. S. Simpson: Leave to make an introduction.
Leave granted.
Introductions by Members
Hon. S. Simpson: I’m really pleased we’re joined here by a group of students from my
constituency, from St. Francis of Assisi School, grade 5s and 7s. We have 29
young people here to learn something about what we do in this place and how
we do it. They’re being chaperoned and joined by a group of teachers and
parents, including Cathy Sulmona, Josie Pauletto, Nina Sudar, Kirsten
Jansen, Catherine Palsari, Yvette Pardisio and Mandy Dio. Will the House
please make the students from Francis of Assisi welcome.
Debate Continued
J. Martin: Probably far and away, the most fundamental piece of the rule of
law is the presumption of innocence. A charge in no way whatsoever
equates to guilt. Yet we spoke yesterday about how critical, how
important, this leave is going to be for the grieving process, for the
ability for someone — for their emotions and their physical health — to
get through this.
Yet we are basically seeing a deprivation of an employment right
that we’re extending based on a charge, not on a finding of guilt. So
there is a little bit of a concern that this does fly in the face of the
presumption of innocence. I would ask the minister to share his thoughts
on that.
Hon. H. Bains: Hon. Chair, I ask leave to make an introduction first.
Leave granted.
Introductions by Members
Hon. H. Bains: In the gallery — I think they are just about to leave — Mr. Saho Deol,
a long-term leader of the community, along with Mr. Satnam Sahota and one
other guest from India who is visiting us here in Canada. They’re here to
visit us and see how the proceedings of this House work. Please help me give
them a warm welcome.
[2:50 p.m.]
Debate Continued
Hon. H. Bains: Member, remember that we are using the language that every other
jurisdiction in Canada that has this act is using.
I think what you’re trying to avoid is a situation where…. We are
trying to accommodate parents who have lost their child or their child
has disappeared so that they are accommodated for leave to grieve and to
support each other. You don’t want to be in a situation where one or
both parents are involved in criminal activity. God forbid. Who does
that?
But if the police charge them with the disappearance of that
child, I think there would be very strong opposition from the employer’s
side. “They are involved in the disappearance,” they would say, “and
they’re charged, and now you’re punishing us to give them leave.” That
wasn’t the intent of the act.
I think we’re just trying to create a balance here. We followed
what the other jurisdictions have done, and it has worked. I’m sure
there’s always room for abuse, but that is very minor if something ever
happens. I think the intent here is that all those parents, when they
lose their child or when the child disappears, have time to
grieve.
J. Martin: Thank you for the response. I only have one more question on this
section, one more question on the act, in fact.
This leads to what I raised in the House yesterday during second
reading. I guess I could have brought this up earlier. If we’re looking
at…. The employee is entitled to unpaid leave for a period of up to 104
weeks. What I spoke about yesterday is that in two years, an awful lot
can happen in the workplace. A job is eliminated, or the job has morphed
into something that the person 24 months later no longer has even
remotely the skill set for.
I’m curious about what the provisions would be for training, the
funding of that training or the need to recertify this person or to
certify him or her in something completely different when they return to
a jobsite, 24 months later, that they don’t recognize.
Hon. H. Bains: Member, those types of things happen every day. Whether you are
working or on a short-term leave or you’re on vacation, when you come
back, the job changes. But I get it that you’re saying that 104 weeks is
a long time if they exercise the entire period of 104 weeks. Things
change. I get that. But I think even under the act today, this is what
the act requires the employer and the employees’ rights are.
It says for all leaves recognized under the Employment Standards
Act, the act requires that at the end of the leave, the employer must
place the returning employee in the same position that the employee held
before taking the leave or in a comparable position. Now, I understand
that there could be a whole department shut down. Again, it is the
employment law that will dictate what employees’ rights are when they
return to work. It happens every day.
I think that whether it is two months’ leave or one month leave,
things happen. Jobs disappear, and jobs change. When you applied for
leave and leave was granted, there was manual work. By the time you come
back…. You bring in some technology, and the job is eliminated or done
very, very differently. Either retraining or a comparable job — I think
that’s where employer and employee will sit down and work it
out.
Sections 4 to 8 inclusive approved.
Title approved.
Hon. H. Bains: Thank you, Members. All good questions. I move that the committee
rise and report the bill complete with amendment.
Motion approved.
The committee rose at 2:55 p.m.
The House resumed; Mr. Speaker in the chair.
Reporting of Bills
BILL 6 — EMPLOYMENT STANDARDS
AMENDMENT ACT,
Bill 6, Employment Standards Amendment Act, 2018, reported complete
with amendment.
Mr. Speaker: When shall the bill be considered as reported?
Hon. H. Bains: With leave, now.
Leave granted.
Mr. Speaker: When shall the bill be read for a third time?
Hon. H. Bains: Now.
Third Reading of Bills
BILL 6 — EMPLOYMENT STANDARDS
AMENDMENT ACT,
Bill 6, Employment Standards Amendment Act, 2018, read a third time
and passed.
Hon. D. Eby: I call committee stage of Bill 11, International Commercial
Arbitration Amendment Act, 2018.
Committee of the Whole House
BILL 11 — INTERNATIONAL COMMERCIAL
ARBITRATION
AMENDMENT ACT, 2018
The House in Committee of the Whole (Section
B) on Bill 11; R.
Chouhan in the chair.
The committee met at 2:59 p.m.
Hon. D. Eby: Joining me, Richard Fyfe, Deputy Attorney General, and Lauryn
Kerr, innovation adviser, Ministry of Attorney General. I look forward
to questions from the members.
Sections 1 and 2 approved.
section 3.
M. Lee: Thank you to the Attorney General’s staff for providing a briefing
yesterday at the noon hour. I have some questions to consider on
specific sections of this proposed amendment.
[3:00 p.m.]
To lead off, before dealing with the specific amendment to repeal
the definition of “B.C. Arbitration Centre” in 2(1)(c), I just want to
ask if the Attorney General would be so kind as to describe the overall
consultation process that has taken place to review and provide input to
AG ministry staff on the substance of these amendments.
Hon. D. Eby: We’ve been fortunate in the province. I imagine the member is
aware that there’s an advisory group that predated our government, which
we continued through after transition, and it is quite an esteemed
group. We’ve got a member of the B.C. International Commercial
Arbitration Centre. We have top arbitrators and counsel who work on
international arbitration in the province. We have a bencher from the
Law Society. We have the second vice-president of the Law
Society.
One of the members on this advisory committee is Henri Alvarez,
who was on the initial committee that brought in the first version of
this law in British Columbia in the ’80s, the one that we’re updating
here today. The co-chairs of the committee were Jonathan Eades, who’s a
counsel within the Ministry of Attorney General — he has an extensive
international arbitration background personally, and it’s been a
pleasure to get to know him and his expertise on this issue — and Angus
Gunn, Queen’s Counsel, who is well known here in British Columbia, both
nationally and internationally, for his arbitral expertise.
So we’ve been quite fortunate in being advised by leading
practitioners in B.C. and people with international experience as well,
on this, in coming up with this bill.
M. Lee: Thank you for that overview. I understand that there has been a
balance that has been struck here to update this act for the UNCITRAL
model law code with the 2006 amendments, as well as to take into account
best practices in other jurisdictions. Were there considerations of
certain areas of this current act that were not modified to meet the
UNCITRAL code?
[3:05 p.m.]
Hon. D. Eby: Hon. Chair, 12, 13, 16, 19 and 21 all deviate in some way from the
UNCITRAL model statute. Just as an example,
section 12, which amends
section 18 of the International Commercial Arbitration Act, changes a
word from the model statute which says that the parties “must be treated
with equality and each party must be given a full opportunity to present
their case.” It changes it to: each party “must be given a reasonable
opportunity to present their case.”
This deviation is based on an innovation that came from Australia
in its recently updated legislation, and part of the mischief that is
sought to be addressed here is the idea that someone might challenge an
award and create a delay in proceedings because they hadn’t had a full
opportunity. It was thought that the word “reasonable” might better
reflect the intention of the drafters. So it is an evolving
statute.
We looked at other jurisdictions in the sections that I mentioned
for the member. So there are some deviations, and I hope that assists
the member in understanding that we’ve done some work to try to make
B.C.’s statute responsive to developments even since the model
legislation was introduced.
M. Lee: On
section 3, just to ask specifically on the deletion of the
reference to the B.C. arbitration centre. I understand that there are
other arbitration entities in the province of B.C., and I think that
that was a consideration — but if I could ask for the Attorney General’s
explanation of that.
Hon. D. Eby: The definition is being repealed to bring the legislation in
conformity with the UNCITRAL model law. The definition is problematic to
start with. It’s a B.C. arbitration centre. What it intends to refer to
is the B.C. International Commercial Arbitration Centre, the BCICAC,
which is located in Vancouver. This organization exists, but it is not
called the B.C. arbitration centre.
These are some of the challenges of including these names in
legislation. Reference to the term is being eliminated through the act
in order to ensure compliance with the UNCITRAL model law so that
international arbitrators understand what’s going on. Part of the idea
here is to ensure ease of understanding for international
parties.
Section 3 approved.
section 4.
M. Lee: On
section 4, the deletion that’s being proposed leaves in the
words “an institution” in sub 2(2). Is there a reason to leave those
words in? Meaning: are they not already just covered under third
party?
[3:10 p.m.]
Hon. D. Eby: The existing subsection 2(2) that’s proposed to be modified here
follows the model law provision, but it has the B.C. arbitration centre
inserted into the provision as an example of an institution that can
administer an arbitration. There is no such organization as the B.C.
arbitration centre. It means to say the B.C. International Commercial
Arbitration Centre.
The challenge that’s being addressed here is…. It’s a bit of
future-proofing of the legislation. We could change it to the B.C.
International Commercial Arbitration Centre, but if that group ceased to
exist or changed its name to something else…. It avoids the legislation
becoming out of date.
The idea here is that we ensure understanding by international
arbitrators, in that it’s consistent with the model law wording. In
including an institution, it future-proofs the legislation in the event
that the BCICAC might change its name. This amendment is not intended
to…. We don’t believe it has any effect on the kinds of bodies that can
administer arbitrations.
Section 4 approved.
section 5.
M. Lee: On the reference in
section 5, it certainly adds to the existing
section 6 of the act, in terms of questions concerning matters governed
by this act that are not expressly settled in this act are to be settled
in conformity with the general principles on which this act is based. In
the proposed amendment in this bill, there is no definition of what
these general principles are. I would just ask the Attorney General how
these general principles are intended to be defined or interpreted by
arbitral tribunals or the courts.
Hon. D. Eby: This wording comes expressly out of the model law. We believe that
it’s not a defined term in the model law, nor is it a defined term in
our proposed legislation in front of the House here.
It’s our understanding that UNCITRAL left it intentionally open
for an international audience that is familiar with international
arbitration general principles, experts in law on these general
principles — to leave it open as a non-closed category of general
principles of international arbitration. We’re incorporating this
directly from the model law.
Section 5 approved.
section 6.
M. Lee: A question just regarding the definition of arbitration agreement
that is being proposed here in the bill. As I understand, there are two
forms of arbitration agreement under UNCITRAL that might be utilized.
This bill utilizes the longer form. I’d just like to ask the Attorney
General what the considerations would have been to consider this longer
form — using the longer-form definition over the shorter
form.
Hon. D. Eby: The member is correct. We chose the lengthier
definition.
[3:15 p.m.]
In 2006, when the model law was drafted, the UNCITRAL drafters
looked at the definition from the 1985 model law and proposed two
options for updating it — in particular, to have a language that
accounts for a more modernized definition. One was really specific, and
one was more general.
When we did a scan of jurisdictions that have implemented this
model law around the world, we saw that the leading jurisdictions
selected the lengthier and more comprehensive definition of arbitration
agreement, including arbitration agreements entered into through
electronic communications. We also looked to the Uniform Law Conference
of Canada, which did a thorough review and recommended, as well, the
lengthier definition. The proposed amendment that’s here follows the
comprehensive model law option, which the Uniform Law Conference of
Canada recommended.
What the effect of this amendment is, is that it will clarify and
simplify determinations of when parties have entered into an arbitration
agreement. It will clarify the scope of arbitration agreements — namely,
that they’re broad. It will bring B.C. into conformity with standard
international commercial arbitration practice. Specifically, looking
domestically, Ontario adopted the lengthier definition. Internationally,
both Australia and Singapore adopted the lengthier
definition.
M. Lee: Just staying with this
section of the bill, this section, in terms
of that definition of “arbitration agreement,” also expands and includes
the definition of arbitration agreement in writing to respective oral
agreements. Under the current act, the only way that an oral arbitration
agreement can exist is if one party alleges that such an oral agreement
exists and the other party does not deny the existence of such an oral
agreement.
This bill would change that under the definition of an arbitration
agreement in writing. I understand that Singapore has similarly expanded
this to include oral agreements. I’m asking if the Attorney General can
just share the review of that change in this act, given the nature of
dealing with oral agreements and the sometimes questionable nature of
those considerations.
Hon. D. Eby: Obviously, there are concerns with oral agreements. One of the
concerns is certainty that the agreement will be upheld. So the proposed
amendment here, subsection (4), has a deeming provision that essentially
deems an oral agreement to be equivalent to an agreement in writing, for
the purposes of this model legislation or for the purposes of our
legislation, if its content is recorded in any form. That’s whether or
not the arbitration agreement or contract has been concluded orally, by
conduct or by any other means.
The hope here, obviously, is that if the oral agreement is
recorded, we can have that goal of certainty and also provide some space
to have an oral agreement within the legislation.
Section 6 approved.
section 7.
M. Lee: In this particular
section of the bill, there is an amendment
proposed to
section 8, sub (1), of the stay of legal proceedings to
provide a more generic reference to litigation proceedings and bring it
more in conformity with the model law. I just would like to ask the
Attorney General to consider if there’s been any discussion as to this
change. I appreciate that in the original act, “service of any pleadings
or taking any other step in the proceedings” was very much tied to the
B.C. context.
With this change to a more generic form to be more user-friendly
internationally, does the Attorney General consider this to be a
different meaning, potentially, that could be interpreted even in
something that might occur in a B.C. jurisdiction?
[3:20 p.m.]
Hon. D. Eby: This amendment is intended to remove language which is quite
dated, “service of any pleadings or taking any other step in the
proceedings,” and replace it with: “submitting the party’s first
statement on the substance of the dispute.”
Now, the current language in the law uses terminology that’s very
specific to civil procedure rules in British Columbia. However, this act
is not intended for a domestic audience. It’s intended for international
commercial parties, who are likely not familiar with B.C. civil
procedure. The idea here is that changing the language to “submitting
the party’s first statement on the substance of the dispute” will be
just more easily understandable and will be clearer for commercial
parties from around the world.
The new terminology is in conformity with the UNCITRAL model law.
It’s important to note that it’s not identical to the model law
provision, in that we’re maintaining what was an innovation in B.C. of
requiring that the action be done before submitting the party’s first
statement, instead of not later than submitting the party’s first
statement, which is the model law. We think that it provides greater
clarity for parties around timing — the wording of “before submitting
the party’s first statement” instead of using the model law wording of
“not later than submitting the party’s first statement.”
Sections 7 and 8 approved.
section 9.
M. Lee: This
section 9 of the bill raises the threshold for when there are
justifiable doubts as to an arbitrator’s independence or impartiality,
in effect amending
section 12 of the act. I appreciate that what’s been
included here is that justifiable doubts exist only when there is a
“real danger of bias.” That is a higher standard that’s being utilized
here.
Can the Attorney General share with the House whether this test
has been defined in other jurisdictions in common law or any other
customary international law which Canada might recognize or turn to for
assistance in the
interpretation of that test?
Hon. D. Eby: This amendment, on its face, clearly does and is intended to raise
the standard needed for a party to challenge an arbitrator’s
independence or impartiality. When we did our scan of jurisdictions
where international arbitrations take place, it was identified that
several jurisdictions, including England and Australia, had raised the
bar for these challenges to arbitrator independence or impartiality from
“justifiable doubts,” which is a term of art, to the higher standard of
“real danger of bias.”
The goal was to curb low-merit, disruptive challenges to the
arbitrator. We see some real benefits for an international audience in
this, in raising this bar, because there had been problems in
international commercial arbitration practice where parties used
low-merit challenges to arbitral independence and impartiality as a
strategic tool to disrupt the arbitration.
We think this might be an attraction to come to British Columbia
to resolve disputes, which is part of the goal of this legislation, if
parties can be sure that these low-merit challenges are less likely to
take place. The effect of this legislative change to the International
Commercial Arbitration Act will be functionally, then, to support
arbitration efficiency and to encourage parties to choose B.C. as
governing arbitral law.
principle of “real danger of bias,” and Australia has also taken this
approach in recently revising their international commercial arbitration
legislation as well. I note for the member that this is an innovation on
the model law, so it’s not contained in the model law.
Section 9 approved.
section 10.
M. Lee: Just on
section 10(
b) of this bill, there’s an amendment proposed
section 16 of the act, which is a departure from the model law, but I
understand that Singapore and Ontario have both made this similar
change.
[3:25 p.m.]
It’s not just a case where a tribunal has ruled that it has
jurisdiction but also a case where it has ruled that it doesn’t have
jurisdiction. That can be raised with the Supreme Court to decide the
matter. With this departure from UNCITRAL model law, I’d just like to
ask the Attorney General whether there has been any comment or
consideration as to whether that departure would have any detrimental
effect, in terms of B.C. being an attractive venue for international
commercial arbitration.
Hon. D. Eby: The member refers to subsection (
b) in the bill which amends
subsection 16(6) in the act. The effect of this amendment — the member
is right about Ontario and Singapore — is to allow a party to appeal not
only a positive jurisdictional ruling but now also a negative
jurisdictional ruling. We do that by removing the language “that it has
jurisdiction.”
It does indeed expand the scope of authority for a party to
appeal, raised either at the beginning of the case or during the
proceedings, when jurisdiction is decided by the arbitral tribunal as a
preliminary question. The importance of Ontario and Singapore is that
these are recent amendments that they’ve made to their legislation,
clearly responding to demand that they’ve identified — Singapore being
an international centre for arbitrations that’s very well known, and
Ontario trying to be.
Sorry, I might have sounded a little disrespectful. Ontario has a
number of international arbitrations as well. We just want to do more
here in British Columbia. But there are a number of jurisdictions, in
fact, beyond just Ontario and Singapore, with similar provisions —
Belgium, England, France, New Zealand and Sweden — to the point where we
reasonably believe that an international audience will expect to see
something like this in a jurisdiction that they select for an
arbitration.
Section 10 approved.
section 11.
M. Lee: I appreciate that on
section 11 of this bill, it contains the
larger
section of the bill, in terms of interim measures, and primarily
imports from UNCITRAL’s model law, the Interim Measures and Preliminary
Orders provisions of that model law.
To the Attorney General: as you’ve done generally, I’d like to ask
if you could specifically make comment on any material departures from
UNCITRAL’s model law. I recognize, for example, in subsection 17.01(
c) that there’s a slight variation there. Perhaps the Attorney General
could provide a comment on that departure, and on any other departures
of any material nature, for the House.
[3:30 p.m.]
Hon. D. Eby: The material departures are sub 17(2)(e), which, in its entirety,
is an innovation on the model law.
Sub 17.01(1) — in particular, it’s just for completeness that it
includes (
e) there now, which obviously is not in the model law, because
that’s a B.C. innovation there. So it’s immaterial, but it’s just
responsive to the amendment in 17.
Then sub 17.01(3), UNCITRAL only includes (d). So the reference to
section 17(2)(
b) or (d)…. UNCITRAL, the model law, only has (d). We’ve
added (
b) in there as well.
Then sub 17.10(3), in its entirety, is a departure from the model
law.
M. Lee: Thank you for that overview. Any comment on any of the nature of
those departures as to, again, the competitive position of this
jurisdiction…. Those are intended to be innovations. I wanted to confirm
that that’s the case and there’s nothing there that would put us at a
disadvantage.
Hon. D. Eby: Our arbitral advisory committee took as the basis for the work
that we asked them to do in advising us on this that the model law was
the base.
We wanted them not to depart from it, unless the departure was
expressly to provide an advantage to British Columbia in, essentially,
competing for the business of having international arbitral matters
determined in British Columbia. So the member can take some comfort that
every departure was considered by and recommended to government by this
committee of international arbitrators, who know these matters so
well.
There is one specific provision that I wanted to provide a brief
comment on, sub 17.10(3), which is an innovation here in British
Columbia. “When requested to grant an interim measure, the court may, if
it considers it proper, refer the request to an arbitral tribunal.” This
is something that is in Ontario’s legislation.
The principle behind it really encourages the courts or provides
them with the ability to defer to the arbitration tribunal. One of the
things that is very toxic to attracting international arbitrations is
the possibility of spending years in judicial review, where courts
review the arbitrator’s decision. The reason why international companies
choose arbitration is for an expedited process to get resolution and
certainty.
[3:35 p.m.]
[L. Reid in the chair.]
If it goes through multiple court appeals and so on, and there’s
uncertainty in that regard, that detracts from our ability to attract
that business to British Columbia. So this provision here allows for a
court to say: “Although we have authority here, we are going to refer
this request back to an arbitral tribunal in order to achieve the goals
of the act here, which is an expedited resolution of international
commercial disputes.” That is why Ontario adopted this and why we’re
adopting it as well.
Section 11 approved.
section 12.
M. Lee: On
section 12, as the Attorney General mentioned off the top, this
is a departure from UNCITRAL’s model law. I appreciate the comment that
he just made in the context of any departure is reviewed by the advisory
committee. Keeping that in mind, my question, then, would be around the
standard of reasonableness with the review that has been underway for
these proposed amendments.
As this is a reduction in standard from full opportunity to a
reasonable opportunity, what are the parameters under which
reasonableness has been defined or considered in other arbitrations in
other jurisdictions as to parties coming to a common understanding as to
what that reasonable test would look like?
Hon. D. Eby: The member is right. The intention of this amendment is to reduce
the possibility of an appeal of an arbitral decision on the basis that
someone didn’t have full opportunity to present their case. It reduces
full to reasonable opportunity. It’s understood through that amendment
that, actually, that’s less opportunity. Any reviewing court would look
at that and say that full opportunity might be different than what’s
reasonable in the circumstances.
The decision behind doing that is to say that just because you’re
unhappy with the decision and the arbitration doesn’t mean you get to go
to court and say: “Well, I had a reasonable opportunity to present our
case, but it wasn’t a full opportunity.”
The full standard was understood, certainly by Australia, to be
too strict and invited too many frustrating challenges to decisions that
were good on their face and provided both sides a reasonable opportunity
to present their case. The decision was made in Australia and again
here, on the advice of our advisory group, to say that each party must
be given a reasonable opportunity to present their case, of course, but
we don’t want to see a lot of appeals that will frustrate the intent of
this act and the intent of parties initially on entering into
arbitration — to have a quick and final resolution.
The key here is that this is an innovation that we see in a
jurisdiction that does a lot of these — Australia. This is their
innovation that we’re following. We believe that one of the reasons that
Australia has been able to attract a fair amount of international
arbitration is they have
an act that is responsive to the needs of the
international arbitral community, and we would do well to follow their
lead on this particular section.
Sections 12 to 15 inclusive approved.
section 16.
M. Lee: With respect to
section 16 of the bill, I appreciate that it
follows the recommendations of the Uniform Law Conference of Canada
regarding the enforcement of consolidation agreements and adopts the
ULCC’s model law on this aspect of international commercial
arbitration.
[3:40 p.m.]
I would like to ask the Attorney General if he could explain
whether the provisions addressing the enforcement of consolidation
agreements — this particular set of provisions had been adopted in other
jurisdictions — and which jurisdictions they might be and why the ULCC’s
model law was ultimately chosen in this respect.
Hon. D. Eby: Businesses’ disputes can sometimes involve several related
contracts. The contracts will have similar arbitration clauses, and the
parties might all come together — they often do come together — and
agree that it would make sense to consolidate several related disputes
within one arbitration instead of having several very similar
proceedings.
Sometimes in the international context, disputes can arise at the
beginning about what was previously agreed to be heard together and
whether that should be enforced or not. The courts in B.C., under this
section, could be called on to determine the preliminary question before
the arbitration proceedings start. The purpose of this amendment isn’t
so much for the individual parties, but it’s to provide clarity for the
court in British Columbia as to exactly when these kinds of agreements
should be enforced.
The existing consolidation provision in the act is quite
rudimentary. The effect of this revised amendment is to provide more
direction to the courts on the topic of consolidation of arbitral
proceedings and the enforcement of consolidation agreements.
There’s a possibility that the judge that hears the matter might
be looking for more information about exactly how to consolidate. These
are not provisions that the courts will necessarily deal with every day,
so the idea is that if we provide more explicit direction to the court
on these consolidations, we can enhance the cost effectiveness of the
arbitral process because the judge has a better understanding of what
needs to be done.
Without this proper direction, the benefits of consolidation can
really be lost — if the court doesn’t know what to do on a
consolidation. The intention here is to provide the assistance to the
court that a judge would need to resolve this. So the new provision says
that the court shouldn’t order consolidation unless the parties have
agreed in advance to certain fundamental matters, including the place of
arbitration, the procedural rules for the arbitration.
As the member notes, it is an innovation from the UNCITRAL model
law. It’s recommended from the Uniform Law Conference of Canada to
really, I think, recognize the situation of Canadian jurists who would
be asked to decide these matters. That’s why Ontario adopted an
equivalent consolidation provision in its act as well. And this is: how
do Canadian courts and judges understand what the hope is for a matter
that comes before them on consolidation if we don’t provide them with a
more detailed outline?
The Uniform Law Conference of Canada, in their deliberations on
this, concluded that it’s not feasible or advisable to add a court power
to order consolidation of arbitrations in cases where all parties have
not agreed on these points. But if the parties have agreed, but one or
more of the parties refuses to honour the agreement, then in that case,
the court should be able to enforce consolidation.
We’ve seen Ontario pick this up. It’s recommended by the Uniform
Law Conference of Canada, which itself was informed by experts on
international arbitration. That went through a review process by our own
experts on the advisory panel, it was recommended to government and
government has adopted that in the bill, in this section.
Sections 16 to 18 inclusive approved.
section 19.
M. Lee: Just on
section 19 — in fact, in
part 8 — I’d like to ask this,
prior to asking a specific question around the amendment to
section
[3:45 p.m.]
Under
part 8 of the act, “Recognition and Enforcement of Arbitral
Awards,” was there any consideration by the ministry staff and the
advisory group of also imposing a limitation period, in terms of
applying for recognition and enforcement of an award, as is the case in
Ontario and in other jurisdictions like London and Singapore?
Hon. D. Eby: B.C. has a freestanding Limitation Act that has the same timelines
as were being considered here. We did consider including the limitation
within this act, but for purposes of legislative consistency, we
preferred to leave the limitation period within B.C.’s Limitation
Act.
M. Lee: I appreciate the response. I would like to ask a follow-on
question related to that. I appreciate that in B.C. we’ve had a very
effective stand-alone statute, which is now being modernized under this
bill.
A second point in this same area would be…. In Ontario, there is
also a provision that deals with enforceability of arbitral awards
against the Crown. There is a specific provision that addresses that.
Was there any consideration of a specific provision to be incorporated,
in this particular bill, for that purpose?
Hon. D. Eby: Madame Chair, we were just having a little discussion about
whether it was the Crown Proceeding Act or the
Interpretation Act, and
it turns out that it’s
section 14 of the
Interpretation Act that makes
all legislation in B.C. binding on governments. Subsection 14(1) says:
“Unless it specifically provides otherwise, an enactment is binding on
the government.” Because we have that provision in our
Interpretation
Act already, we did not include it in this act. It’s already of that
effect for the government of British Columbia.
M. Lee: Thank you for that response as well. Just to go specifically,
then, to the amendment to
section 36 regarding third-party funding. To
have a specific carve-out that “third party funding for an arbitration
is not contrary to public policy” is not in UNCITRAL’s model law. I
appreciate that that is also a B.C. innovation, so to speak. I’d just
like to inquire of the Attorney General whether there have been other
jurisdictions that have employed a similar carve-out like
this.
[3:50 p.m.]
Hon. D. Eby: This amendment is based off of Hong Kong’s legislation. It’s
needed in order to provide clarity concerning the acceptability of
third-party funding in the international commercial arbitration world.
Third-party funding is when a person who is not a party to the
arbitration agreement provides funding to a party who is a party to the
arbitration agreement in return for a financial benefit if the funded
party is successful in the arbitration.
This type of third-party funding is acceptable in international
practice because it enhances the possibility of claimants being able to
enforce arbitral rights for which they bargained in international
contracts. It’s also a common form of risk sharing — access to final
dispute resolutions promoted through risk sharing. Similar risk-sharing
funding agreements occur in some domestic disputes.
The effect of the amendment will be to signal that British
Columbia recognizes the use of third-party funding as a commercial
practice in international dispute resolution. It will remove challenges
to an arbitral award on the basis that a third party provided funding to
a party who was otherwise successful in the arbitration.
Third-party funding is common in international commercial
arbitration and in some domestic legislation in British Columbia. Not
including a provision which confirms that third-party funding is not
contrary…. There’s a double negative there. Including a provision which
confirms that third-party funding is in conformity with public policy.
Other jurisdictions have a provision like that.
See? I tried to solve the double negative to make it clearer, and
I made a mess of it.
If we didn’t have this, it could disfavour British Columbia as a
venue for international commercial arbitration because this is a
practice that is accepted quite broadly in the international arbitral
world.
Sections 19 and 20 approved.
section 21.
M. Lee: On this particular amendment to include 36.01 as a new
section in
the act, this amendment enhances the privacy and confidentiality
provisions that adds…. It’s a slight variation, I believe, from
UNCITRAL’s model law. Besides the UNCITRAL model law provision, what
other standards were considered here, whether it’s Australia or in other
jurisdictions? Did the adviser group and the ministry staff consider
what the impact would be on whether the same level of privacy and
confidentiality protection being provided under this particular
amendment is the similar protection under laws of other
jurisdictions?
Hon. D. Eby: This text is a hybrid of our current privacy provision in
section
24(5), the London Court of International Arbitration rules and the
domestic ULCC Arbitration Act. Disputes as to the scope of
confidentiality obligations in international commercial arbitration are
fairly common. These guidelines, we’re hopeful, will limit some of these
disputes.
Privacy and confidentiality, obviously, are connected and
overlapping concepts. Privacy, obviously, applies to the hearing
conducted between the parties, the arbitrator and any staff that need to
be present to assist in the arbitration. Confidentiality is much broader
and, in the international arbitration world, concerns the need to not
disclose information from the arbitral process, including the arbitral
award, to the outside world, subject to various provisions in the
act.
The existing act already recognizes that international commercial
arbitration hearings are held privately. The amendment preserves the
concept of privacy and now addresses the related need of confidentiality
— that is, the nondisclosure of information and documents from the
arbitral proceeding.
The amendment is needed in order to limit disputes regarding the
scope of confidentiality as it applies to these types of arbitrations
under the act. It’s also needed to clarify obligations in advance so
everybody knows what they’re signing up for. This amendment will allow
parties to opt out of the confidentiality obligations entirely or in
part, by agreement. Further, such obligations do not apply if disclosure
of confidential information is required by law to protect or pursue
other legal rights or such disclosure as authorized by a
court.
[3:55 p.m.]
The effect of this will be that we’ll be able to maintain
flexibility for parties when deciding to what extent they want the
proceedings to be confidential. We also hope that this will clarify
obligations that parties often assume exist but the parameters of which
can be subject to disruptive disputes and, again, a lack of certainty
and finality in the arbitration.
Sections 21 to 23 inclusive approved.
Title approved.
Hon. D. Eby: I move the committee rise and report the bill complete without
amendment.
Motion approved.
The committee rose at 3:56 p.m.
The House resumed; Mr. Speaker in the chair.
Report and
Third Reading of Bills
BILL 11 — INTERNATIONAL COMMERCIAL
ARBITRATION
AMENDMENT ACT, 2018
Bill 11, International Commercial Arbitration Amendment Act, 2018,
reported complete without amendment, read a third time and
passed.
Hon. D. Eby: Hon. Speaker, if you can give us a second here before I call the
next matter.
[4:00 p.m.]
I call estimates for the Ministry of Labour.
Committee of Supply
ESTIMATES: MINISTRY OF LABOUR
The House in Committee of Supply (Section B); L. Reid in the
chair.
The committee met at 4:02 p.m.
On Vote 34: ministry operations, $12,638,000.
Hon. H. Bains: I must say it is an honour to stand here to speak about the
2018-2019 budget for the Ministry of Labour.
Before I do that, I would like to introduce staff I have with me
to help me through this exercise. Trevor Hughes is deputy minister, on
my right; Tracy Campbell, assistant deputy minister, management services
division, on my left; and John Blakely, from the labour policy and
legislation branch of the ministry, right here behind us.
The budget this year, as other years, supports the ministry’s
overall responsibility for workers’ health and safety, labour relations
stability and to ensure that B.C.’s employment standards reflect the
needs of British Columbians.
The budget for the ministry is $12.638 million. This provides an
important increase of funding, $3 million over three years, to allow the
ministry to do a number of things. The funding will support the
employment standards branch, putting them in a better position to
respond to recommendations coming from various reviewing bodies — I
expect their reports to be in the near future — including the B.C. Law
Institute and others.
We’re planning, as we prepare to update the B.C. employment
standards, to reflect the changing nature of our workplaces. As we have
heard in this House and other places, workplaces are changing. We as
government and as elected officials must respond to those changing needs
of the workplaces, both from the employer’s side and from the worker’s
side.
[4:05 p.m.]
Our government is focused, as we have said before and I’ve said
many times, on people — putting people first, people front and centre,
when we develop our policies. As a government and as a ministry, we are
consulting widely with British Columbians to get feedback on ways we can
make those positive changes. Nowhere is this truer than the workers who
make minimum wage.
We created an independent Fair Wages Commission that visited
communities around the province and met with all sectors of the economy,
met with employers, workers, unions, business groups, academics,
economists and individual workers. Also, they looked at the experiences
of minimum wage all across different jurisdictions, the history of
minimum wage increases in B.C. and the impacts of those increases to
both employers and workers.
The commission prepared unanimous recommendations on the path to
reaching and surpassing a $15 minimum wage. What I’m really happy
about…. That commission, they were…. If you look at the makeup of that
panel, we have a very highly regarded economist from the business
community. We had a very respectful union leader. We had a very
reputable economist, the emeritus professor. They have the capacity to
look beyond the rhetoric, take the information, analyze it and come back
with recommendations.
The recommendations that they came back to me with were very, very
commonsense, predictable: to provide certainty. That’s what employers
were looking for. After being appointed as minister, when I met with
different organizations representing employers and employers groups, one
thing they said was that they were looking for certainty. The report
that they gave me provided regular, predictable and commonsense
increases over four years to reach over $15 an hour for those who are
the lowest-paid workers in the province.
What does that do? They give an increase to those lowest-paid
workers, as I said, to make their life more affordable, have a few more
dollars in their pockets. As we all know, for those workers who are at
that wage rate, every increase, every dollar they receive, they will be
spending and investing within their own communities, in the businesses
within those communities. Businesses will thrive. The workers will have
a few more dollars in their pockets to have a little bit better life. As
for the government’s commitment to make life more affordable for British
Columbians, it’s on the path to achieve that.
The commission has been looking at how to raise wages for those
workers who are paid one of the alternate wages. That report is
complete, and we will be making decisions on those in the coming days
and weeks — how to deal with those five different alternate groups, such
as farmworkers and those that are liquor servers.
Then after that, the commission’s job is to look for ways…. How do
we deal with the discrepancies between the minimum wage and the living
wage? That’s a very complex area for them to consider. A living wage in
Courtenay, for example, will be much different than what it is in
Yaletown in Vancouver. You could use different examples. I think it will
be a very tough task, but they are up to it. I’m really happy and
waiting for them to come back with that report.
[4:10 p.m.]
The other thing that we are looking for is looking at every area
for the opportunity to make improvements that will better support
workers and employers. For example, in February, I named a committee of
special advisers to review the labour relations code. They are, again,
consulting with unions, employers, academics, workers themselves and
will prepare recommendations, any recommendations, to the code that will
ensure that British Columbia’s unionized workplaces support fair laws
for workers and for businesses and ensure that B.C.’s labour code is
consistent with the best practices elsewhere in the country.
I was involved, also, in the decision to appoint a new chair for
the Labour Relations Board and the Employment Standards Tribunal,
following a merit-based process. I must say that I’m really proud that
for the first time, a female chair of the Labour Relations Board is
appointed. Jacquie de Aguayo is wonderful, very qualified, very highly
regarded and with a tremendous amount of experience in labour relations.
So I’m really happy.
It just shows the changing world of workplaces. A woman, for the
first time in British Columbia, is leading a very, very major portfolio
to bring the employers and unionized workers to deal with their issues
so that they have confidence. They know that there will be fairness.
They know that their issues will be dealt with fairly. I think I’m
really, really happy that we are making those changes.
We’re also breathing new life into WorkSafe B.C. In December, I
appointed a new chair, along with new members, to the board of directors
for WorkSafe B.C. The WorkSafe B.C. board of directors is working to
deliver a new vision for B.C. workers compensation system. They are
undertaking a review of their area of responsibility for the sake of
identifying improvements. We have regulations and policies that have
been there for a number of years, and the board is taking it upon
themselves to do the review — to, again, reflect what the changes in
workplaces are and putting people first.
After all, we are all for people, both sides of the House, to make
sure that they are in the centre when they’re developing those policies
and regulations. I will soon be looking at reviewing the act itself to
see if it reflects, again, these times in workplaces in British
Columbia. Again, I think the whole focus will be to make sure that
injured workers who need help, who seek support from the Workers
Compensation Board, are taken care of and treated with respect, dignity
and compassion so that they recover and get back to their workplaces as
soon as they are ready to go back.
So there’s a lot of work to be done to better serve workers and
employers, while also ensuring sustainable economic growth. With that, I
would like to acknowledge the member from the opposition, our critic. I
look forward to any questions that he may have.
J. Martin: Thank you to the minister. This is the second opportunity that the
new Labour Minister has had through the estimates process. There is an
awful lot more material and activity that has taken place than when we
were able to go through this process last time. Before we go into
anything specific — and I’ll be starting off with the Fair Wages
Commission — I just wanted to probe some general areas with the minister
about the new reality in the workforce that he has spoken of, and many
commentators do.
It’s pretty well acknowledged that the days of landing on a career
in one’s early years and maintaining a focus in that particular sector
for a lifetime are fast coming to an end. It is very common now that
highly marketable people with a very diverse, valued skill set are
finding themselves working part-time contracts. They’re finding
themselves moving around in different, interrelated sectors. And this
has really changed the nature and the expectation of what somebody who
is going through their training and education may be encountering these
days.
I’d like to know what the government and, more specifically, the
Labour Ministry are doing to accommodate and respond to this new reality
of multiple, short-term positions, multiple careers, through one’s
tenure in the workforce.
[4:15 p.m.]
Hon. H. Bains: I think the member recognized exactly what I have said in my
opening — that we are reviewing all the different acts that come under
our jurisdiction. We are looking at reviewing the Employment Standards
Act. The Fair Wages Commission dealt with just one piece of
it.
We also, as I said, have a number of other organizations. There’s
an organization of the B.C. Federation of Labour coalition on employment
standards. They’ve done some review of the Employment Standards Act. The
B.C. Law Institute is going through a review. Their report should be
before us, I’m hoping, within a month or two months. Then they will be
leaving that out for consultation.
WorkSafe B.C., as I said, will be looking at how we look at what
we have today and how workplaces are different today than they were ten
years ago or 20 years ago. How do we change those laws, review them, to
make sure that we reflect the changing world of workplaces? Then we have
the labour code. Our labour code was last reviewed in 2003 — or changed
in 2003.
Those are areas that are being looked at — through consultation,
though. I don’t think it is the right thing to do for the minister to
sit in his office, talk to his staff and some other people and say:
“Let’s make some changes here, because I like those changes.” We are
going through a real consultative process.
You’ve seen that with the Fair Wages Commission. Now you see the
Labour Code review. They’re going through the same thing. It’s an even
further, broader consultative process they are engaged in. They will be
going into more communities than the Fair Wages Commission went to. They
are getting all kinds of submissions from all kinds of different
organizations and individuals so that they learn what the changing
workplaces are out there. How do we deal with them with our new labour
laws?
The world is changing, and we’re changing, and we need to change
with it. That’s exactly what we are doing. The part-time jobs versus
full-time jobs that used to exist…. I remember when I was working, even
at sawmills, we had three generations of people in that operation at
that time — the father, his son and his grandson. They were working
there because they felt that that was their lifelong job and the job
would be there when they retired.
That’s not the case today, as members have identified. There are
always different technological changes coming in different areas of the
workplace. We are looking at all of that to make sure that at the end of
the day, our laws reflect that changing world.
J. Martin: Another change that has been taking place for a number of years
and that has greatly enhanced the breadth of the workforce is people are
living longer, they’re staying healthier, and they’re working beyond the
traditional retirement age. In British Columbia, we have that phenomenon
happening at a greater rate than anywhere else in the
country.
In a similar vein, can the minister speak to what his government
and, more specifically, his ministry are doing to respond to the
phenomenon of more workers in their late 60s, their 70s and even beyond,
that are still in the workforce and have no intention of taking
retirement anytime soon — and what the impact of that might be on the
next generation as well as on the various sectors. It’s a phenomenon
that most of us thought wasn’t going to happen. It was actually supposed
to go in the other direction, with early retirement age, and we haven’t
actually seen that take place.
[4:20 p.m.]
Hon. H. Bains: Another very important area that the member touched on. As you
know, laws all across the country, the federal and provincial laws, are
changing. They have changed to accommodate exactly what the member has
talked about, because we’re living longer. We’re healthier. So they are
allowed to work as long as they are capable of working.
I think for our purpose, for our ministry, we want to ensure that
their health and safety is protected when they are moving into their
latter years. They have very, very valuable experience that no one can
actually get from universities. This is their life-long experience. The
people coming behind them have a lot to learn from them. They have a lot
to pass on to them.
We need to make sure that we accommodate. The ergonomics of their
workplaces need to be looked at, and their health and safety. They may
not be as quick as they were at one time. But it means that we need to
make sure that they are safe when they are doing their job.
They’re better at it because of their experience. The other
workers are coming in. They bring different skills. For example, people
of my…. I don’t know if I want to bring the critic into this. The
technological knowledge isn’t what the young 19-year-old brings to the
table today. They’re easily adopting the technological changes at
workplaces.
We need to make sure that our workers who are in their last few
years who wish to work are accommodated to work but that their health
and safety — which I’m really, really concerned about — are protected
and that they are given the support they need so that they can work as
long as they are capable.
J. Martin: Another area where we’ve seen dramatic change, particularly in
health care and the financial sector, is more and more people working
from home or working from a travelling, mobile unit. This is something
that’s been championed not just for the reduction of wear and tear on
the commuter highways and byways, but also in the need for significant
office commercial real estate.
Are the government and the Labour Ministry, to any specific
extent, moving forward with trying to enhance the amount of sectors and
deliver support to those areas where there might be a willingness to put
more of the employment, more employees, in a position where they are not
traditionally commuting to and from the worksite?
Hon. H. Bains: I firmly believe that the employer and employee working together
are the ones who are moving our economy. Employer and employee working
together create wealth for us, and them working together on how to make
their workplaces efficient and safer is what I am targeting.
My role as Minister of Labour is not to tell them how to do that.
It’s to accommodate that cooperation between employer and employees. If
they can find a way to have employees sitting at home and doing the work
on a computer, it saves the employer, and it saves, as the member has
said, a number of other areas as a society. The employee is at home, and
the employer doesn’t have to invest in capital to provide them an
office.
I think there are a number of opportunities, and many employers
are already taking advantage of them. I know some people who are working
from home, and they have that relationship with their employer. It
depends on what kind of industry you’re involved in. But I think
employers and employees are, in my view, way ahead of us.
[4:25 p.m.]
All I’m doing is making sure that I accommodate that cooperation,
that corroboration that they need, wherever I can help, when they ask
for that help. I provide them with the laws that reflect those changes.
I provide them with the support that they need to create that business
environment where they both want to work together to make their
workplaces efficient.
At the end of the day, we’re not only competing among ourselves
here in British Columbia. Today’s economies are related to the rest of
the world. We want to make sure that our employers are able to compete
with the rest of the world and that we’re good at it. I think we are
already good at it, but we can be better.
J. Martin: Thank you to the minister.
To what extent is the ministry, are we, able to forecast, over the
next ten years, the particular sectors that are going to see the most
growth in British Columbia? What type of supports and initiatives within
government can be most supportive of these emerging sectors?
Hon. H. Bains: I think that question probably should be best put to the Minister
of Jobs. Under their mandate, they are looking at the future and
long-term solutions in that area, predicting which area and which part
of the economy is going to grow faster than the others. What is the new
economy that’s emerging? I think that is something that they are looking
at. I’m sure when their estimates come, the member is welcome to ask
them that question.
I think what we are trying to do here is make sure that our laws
in health and safety and in labour reflect the changing world of
workplaces and accommodate employers and employees to make sure that we
are accommodating their needs of today.
J. Thornthwaite: My question will be different than this. Just one
question.
I attended a presentation a few weeks ago put on by Johanna
O’Flaherty. She is a personal and professional coach that helps first
responders through their critical immediate response for trauma or
critical response.
Subsequently I met a fellow named Bruce Ramsey. He’s a certified
traumatologist. He does training, counselling and intervention for
firefighters. He actually asked me to ask the Minister of Labour whether
or not there was any thought of developing a special facility or program
specific to first responders. He gave me some stats which you’re
probably already familiar with, given the announcement yesterday. But
specifically, military veterans, military veterans with combat exposure,
police, paramedics, firefighters, etc. all do experience higher levels
than the general population of various forms of trauma and
PTSD.
His question was: because there’s an increased incidence of
addiction and mental illness and suicide, is there any thought…? Has the
ministry considered a specific facility or any specific training centre
to help first responders with their identification, treatment and
recovery?
[4:30 p.m.]
Hon. H. Bains: This area, as the member knows, is a very, very serious area. I
think it crosses all boundaries and workplaces when it comes to mental
health. And the first responders are the first ones, because of the
nature of their work. That’s why we made that announcement yesterday,
and therefore, the bill is before the House.
There’s no facility, as the member asked, but I am open to the
member’s suggestion. If you have that name of the person who may have
some really good suggestions to move us in a certain direction, I’m open
to that. If you could pass that name on, and then my staff will contact
them and take that information.
Having said that right now what WorkSafe B.C. has is what they
call the First Responders’ Mental Health committee that they’re working
on.
[R. Chouhan in the chair.]
It was formed in 2015 to provide cross-organizational leadership
and best practices to promote positive mental health for first
responders. It’s called R2MR — Road to Mental Readiness. The mission is
actually to promote positive mental health and provide leadership
resources, awareness, education, training and support which the first
responders, their communities and their leaders might need. So there’s
that work going on. Also, to develop a toolkit of best practices or
resources for employers, supervisors and workers to support mental
health in the workplaces.
The committee also met with the Justice Institute, the primary
trainer of the new first responders — recruits — to ensure that the
material would be incorporated into new recruit training. I think that
work is proactive work — that when you are going for those jobs,
recruitment process, that you are given that toolkit. You are given the
education and the awareness of what you’re walking into, because at that
younger age….
Many of them come at a younger age. They think nothing’s going to
happen to them. But when they experience a dramatic experience at their
workplaces, we all know what happens. So we are trying to get them the
support that they deserve in a timely fashion.
So this is the kind of work that is going on right now through
WorkSafe, but I welcome the member’s suggestion that if the person that
the member talked about…. If you could speak to them, and if they have
some suggestions, then we certainly are open to that.
J. Thornthwaite: Thank you very much for that offer. I definitely will pass on the
individuals that I referred to.
[4:35 p.m.]
I did get a brief instruction from him about the WorkSafe B.C.
program, which they did commend. But one of the issues that is different
than traditional treatment facilities or treatment programs is that, to
be effective, it’s actually the peers that have to be part of that
immediate critical crisis management. So the program that he’s familiar
with…. There’s actually an institution in Massachusetts that does offer
this recovery centre for first responders.
One of the keys for long-term recovery — because it can occur — is
to make sure that the peers are there. So if you’re talking to
firefighters, firefighters from that same area have to be with that
critical management team.
In either case, I appreciate the offer. I will get you the
information, and you can take it from there.
J. Martin: We’ll turn our focus for a little while and probably revisit it a
bit over the duration, specifically on the Fair Wages Commission that
you provided an overview of.
So can the minister tell us if the budget for the commission has
changed from the original of, I believe, $490,000 over two years? It was
$240,000 for ’17-18 and $250,000 for ’18-19. Are we still on track for
the same budget?
Hon. H. Bains: Member, no change to that budget.
J. Martin: Can the minister tell us if he accepted all of the recommendations
in the report?
Hon. H. Bains: Yes.
J. Martin: Among other things, the report did call for a permanent
commission. The minister accepted this recommendation. Can he tell us
how much this is going to cost and provide some details around the
permanent commission?
Hon. H. Bains: The current budget is until March 31, 2019.
I also want to correct myself when I said I accepted all
recommendations. I think one of the recommendations was from the
commission to have that commission established for longer terms, and we
haven’t made that decision yet.
J. Martin: Can we expect a timeline of when there may be some finality about
accepting or rejecting the recommendation for some permanency with the
commission?
Hon. H. Bains: As the member knows, the mandate of the Fair Wages Commission was,
first, to come up with recommendations to deal with the general minimum
wage, and they did that.
The second report is to deal with those alternate wages. The
report is sitting on my desk, and we’re considering what to do with it
and how to proceed with it.
[4:40 p.m.]
Then again, their work hasn’t ended yet. The third piece that they
have is how to deal with the discrepancies between the minimum wage and
the living wage. Each of those reports, I’m sure, will be advising us on
the role of the Fair Wages Commission — longevity, whether they should
be there on a permanent basis, or they may suggest something
different.
We will make those decisions at that time. There’s that important
piece of their task, which is to deal with the discrepancies between the
fair minimum wage and the living wage. So we still have to wait for
that.
J. Martin: The first piece of the increase in minimum wage, to $15 plus — the
initial piece of that is scheduled to come in a mere 12 weeks after the
release of the report. Does the minister think that that was an ample
amount of forewarning for the people that are going to have a
significant enhancement to their labour costs in a mere 12
weeks?
Hon. H. Bains: I, as minister, am always concerned about the businesses getting
long enough notice so that they could adjust their budgets. But I also
depended on the Fair Wages Commission’s recommendations. When they came
back with their first report…. As soon as they came down and as soon as
I had enough time to analyze and to absorb their recommendations, we
were sending out a message of what’s coming. We did as much as we
could.
Again, it is what the Fair Wages Commission came back with, with
their report. That’s part of their job. That was part of their
recommendations. When they came and when the report came, part of their
report recommendation was the first increase on June 1. Whatever
recommendations came, we considered very seriously.
Remember, it is something that we try not to interfere with.
They’re supposed to be independent and depoliticizing that system. I
think that was their recommendation. We tried everything that we could
to give as much notice to the employer as possible.
J. Martin: So in the Fair Wages Commission report, the justification for
their
schedule of minimum wage increases is that the current strength of
the B.C. economy creates an appropriate environment for these increases
to take place with minimal risk to the economy. The report also states
that: “If minimum wage increases occur during economic downturns, the
likelihood of a negative employment effect is stronger.”
So based on the warnings that an increase in minimum wage during
an economic downturn could cause negative effects on employment, can the
minister explain if or how the
schedule might be adjusted if British
Columbia’s economy were to slow in the near future?
Hon. H. Bains: As the member knows, the report is very thorough. They did a lot
of research on their own, and they hired experts as well. They came back
with recommendations that, going forward, in the next two years, they
feel that the economy will continue to grow. That’s why they gave higher
increases in the first two years, $1.30 and $1.20. They feel that in the
following two years, the economy will also continue to grow, but they
didn’t want to predict it that far out. That’s why the increases are
lower in the last two years.
[4:45 p.m.]
They also said in the report that if the economy continues on the
way it is today and if the economy can sustain higher increases, they
have left a little room so that 15 to 20 cents can be added in the last
year. But the Fair Wages Commission will be making that decision at that
time.
J. Martin: Given that, isn’t the inverse also true, that things do happen?
We’re going through some unprecedented waters right now in this country,
and there could be a downturn. Is there an ability to adjust the
schedule if we see in the next 12, 18 months that we’ve got some serious
economic challenges that were not foreseen when the Fair Wages
Commission delivered the report to the minister?
Hon. H. Bains: I’m much more optimistic, Member. And I think as you are…. I
follow what the economists said in that report. Ken Peacock is a very,
very capable economist with the business community. They wouldn’t have
recommended the recommendations that they came back with if they had
doubt that the economy could slip, but they have all the confidence that
the economy will continue to grow.
Now, we can speculate “what if.” I think, on the other hand, it
could be: “What if the economy grows even faster?” But I think that
right now what we are dealing with is that — based on the information we
have today, based on the research that the Fair Wages Commission did,
based on the recommendation of the expert that they hired — those are
the recommendations. I’m confident that we’ll go through it, and by June
2021, the minimum wage will be $15.20.
J. Martin: Well, I am, indeed, very much the optimist. However, we have to be
cognizant here. Not a single economist predicted 2008, so the economists
don’t always get it right, by a long stretch.
The point — and this is the last time I’ll step on this — is that
the minister has said that there’s an ability to enhance the scheduled
wage increases in a good, glowing next three years of economic growth.
I’m just asking if the inverse is true. If things turn down, if things
sour, if small businesses are taking a beating that they and no one else
saw coming, does the ministry have the ability to do the inverse of what
it would do during good times?
Hon. H. Bains: If you look at the report, Member, they did a history of minimum
wage increases. They went back to, I believe, 1979, if I’m not mistaken.
They looked at different times when the economies were going up and
down, but they didn’t find very much relevant to the minimum wage and
the economy. So I think we need to be careful. There are times, in the
historical changes in the minimum wage, when the minimum wage was frozen
and the economy actually went down. The unemployment rate went down. And
there are times when the minimum wage went up and the unemployment rate
went up.
So I think there are different messages out there. Basically, what
they’re trying to do is…. There’s hardly any relevance about the minimum
wage and the economy. I think page 44 clearly goes back to 1979. You
will see that from 2001 to 2010, when the minimum wage was frozen, there
were times when the unemployment rate was at 4.8 percent, 4.3 percent.
But it was frozen. But then it went up to 7.7 percent or 7.6 percent in
2009 and 2010. Then, if you look, going a further two years, when the
minimum wage was raised by $2.25, within 11, 12 months the unemployment
rate actually went down.
[4:50 p.m.]
I think there are a lot of different factors, Member. I think the
government’s role would be to work with those businesses at that time to
ensure that they have the business environment and that they have the
support of the government to make sure that businesses will continue to
thrive and continue to employ those people. There are a number of ways
the government can do that, as the member full knows.
J. Martin: The new government has introduced a number of taxes described as
needed to cool the housing market. Does the minister take into account
the effects of the newly introduced taxes on the overall economy and how
this might affect the feasibility of the current
schedule of minimum
wage increases?
I’m thinking specifically about some operations that had not been
captured previously in paying medical service premiums but do have the
payroll now that will move them toward the new employer health tax, and
they may have in their midst a significant part of their operation
employing people at the low end of the minimum-wage scale.
Has this been taken into account — the new taxes that were not
known when the minimum wage commission did their work?
Hon. H. Bains: As the member knows, the government initiated a number of tax
changes, a number of them that help businesses. The MSP premiums — when
they are eliminated, many of the employers who pay the medical premiums
will no longer be paying. So there are a number of them who will be
benefiting from it.
The PST on electricity. That is cut down 50 percent and then
removed going forward. That is another break to businesses.
Small business is getting half a percent tax break, as you know,
from 2½ percent to 2 percent. So there are a number of areas where the
government has taken initiatives to help businesses when it comes to
taxes.
Yes, some may affect where the taxes may go a little higher, but
that’s what we have told British Columbians — that some who can afford a
little better are asked to pay a little more, such as those in the top 2
percent. We have removed their tax break that they enjoyed previously so
that that money can be diverted to those people who are working and so
that we can also pay for some of these initiatives that the government
has taken.
I haven’t done the analysis, because that’s not part of my
ministry. In net gain for every employer, as per the tax changes by this
government, many are benefiting and some may be paying more. But
overall, I think the minimum wage…. We talk about economists who saw
what was going on in the past. Then they did the research in the other
jurisdictions, and this is what they came up with.
One of the things that I work with, one notion…. In a modern
society, in one of the richest countries, and the province that we live
in, I don’t think it is right for people who are working full-time to
struggle in poverty. I know that the members on the opposite side don’t
agree with that either. I don’t believe those who are working full-time
to struggle to pay rent, struggle to put food on the table for them and
for their children…. They have been wondering when this economy will
benefit them.
I think there are changes being made in the government, and I
respect the question. It’s a valid question, but I think the other
ministries are looking at how our policies are affecting the business
community.
The end goal of this government is to improve and make our economy
grow, because if an economy grows, workers are employed, and they are
paying taxes, and the taxes will pay for all of the social programs that
we all like to enjoy — the roads and the bridges that we like to build,
schools and universities.
I think that overall, it’s the approach of the government to make
sure we want to make life better for British Columbians and at the same
time create a business environment where businesses want to come and
invest, with the expectation that there will be a good return on their
investment. The government role is to create that business environment,
not to get in the way of the businesses.
[4:55 p.m.]
I think we are taking a very, very balanced approach, and I think
you’ll see that’s why, if you look at the last few months, our
unemployment rate continues to be the lowest in the country. There are
businesses that are coming, and they see British Columbia as an
opportunity to invest and get a good return on their investment. I think
we are on the right path, and hopefully we will continue to work
together, and we’ll have a better, brighter, British Columbia than even
today.
J. Martin: Still on the Fair Wages Commission, the minimum wage schedule.
Excuse the fairly in-depth
preamble, but context matters.
Alberta’s increase in the minimum wage happened at a time when
there was a variety of new pressures on small business occurring
simultaneously. They had the new carbon tax. There were changes to
Alberta’s employment standards. This was also introduced when Alberta
was experiencing a very dismal economic climate. Between January and
October 2017, they saw 5,500 small businesses close, and in 2016, they
saw over 7,000 businesses shut down.
While the increase in minimum wage cannot be pointed to as the
reason for the closure of small and local business in Calgary and other
areas in Alberta, it certainly was a factor among many, including new
taxes and raising the minimum wage during such a significant economic
downturn.
With the experience of Alberta in mind, will the minister take
into account the possibility of a slowed economy over the next year or
two and how the introduction of new taxes will affect small, local
businesses in British Columbia that are facing some challenging
times?
Hon. H. Bains: As the member knows, Alberta’s economy is completely different
than ours. They are largely dependent on oil and gas, and we are a very,
very diverse economy. Our customer bases are different. We sell our
products to different parts of the world. As we know, their economy was
going down largely because of oil prices — oil and gas prices. No one
has any control over them.
People can make political statements over there. That’s fine with
them. But the reality is that it was because of oil prices. That
government tried everything that they could to sustain their economic
activities and support business as much as they could. But soon, the oil
prices started to go up, as you know. The economy started to grow,
because everything is related to the production of oil and
transportation of oil in that province. All of the related businesses
started to come back again, and people started to work.
I think for us in British Columbia…. Our Fair Wages Commission —
the economists with their research — looked at what we do and who we are
as far as the economic activities in British Columbia are concerned and
what our future looks like in the next two years and four years overall.
They came back with these recommendations. They looked at all of that.
They looked at the historical changes. They looked at other
jurisdictions, how it affected their economic growth when it comes to
minimum wage.
Our ministries that are dealing with those areas are cognizant of
the fact that we’ve got to be always alert. You can’t be complacent,
because when economic activities and the economies of the world change,
we change. We are, relatively speaking, a very small economy. When the
United States moves one way or the other, it affects us. When Japan and
the Asian economy go one way or the other, it affects us. I think we are
at a better place, and that’s why, when Alberta was suffering due to a
downturn in their economy, we continued to grow. Our economy continued
to grow, and the unemployment rate continued to stay below the
national.
We have set ourselves in a pretty good place around the world as
far as the economic activities are concerned. We can sustain a downturn
in one area of our market, compared to some of the other provinces. I
think in the ’70s and ’80s, we probably weren’t in this situation. We
were largely dependent on the United States. Now we are diverse. I think
it’s the right thing to do.
[5:00 p.m.]
The previous government took a lot of initiatives. Our forest
industry, for example — 75 percent was in the United States. Now China
has emerged as one of the emerging economies for our lumber. India is
coming up as well, and Korea. I think we are diversifying so that we
don’t have to depend on one customer base, for those reasons I
mentioned.
D. Barnett: Work B.C., I understand, is under your ministry,
correct?
Hon. H. Bains: Member, you may be confused. Work B.C. is not under our ministry.
WorkSafe is.
D. Barnett: So the Work B.C. employment funding is not under your ministry. I
got some information that it was.
I have a question for you anyway, to do with WorkSafe. WorkSafe is
a very difficult organization. We have in our constituency offices….
Some of the saddest, hardest cases come from people dealing with
WorkSafe B.C. Do you have intentions to overhaul WorkSafe in your
mandate?
Hon. H. Bains: Member, I share your concern. I dealt with many of those people.
They came to my office. They are some of the most difficult cases, and I
brought those cases to the previous Minister of Labour’s
attention.
I will agree with the member that we need to make changes, and I
have already started that. I started with the leadership. Not that I
blame the previous leadership for anything, but I think a new vision and
a new culture are needed. A new approach is needed. That’s why I said
earlier on that it has to be people-oriented. The policies should be
developed around people.
Changes are happening. We have changed the board members,
including the board chair. I asked them, “Review your policies and
regulations,” and they’re doing that. I think that report should be
coming soon, on what changes are being recommended. Then I’m looking at
changing the act, as I said earlier. Maybe the member wasn’t here at
that time. The act needs to be reviewed, and I am going to do
that.
The whole purpose of WorkSafe B.C., as you know, or the Workers
Compensation Act and workers compensation. Going back to 1917 in British
Columbia and 1913 in Canada and other places, in the great compromise,
as they called it, the workers gave up their right to sue, and the
employers agreed to look after those workers when they were injured at
that workplace. Both of them had that commitment to each
other.
Sometimes though, I’m sure, the workers that come to your office,
Member, and that came to our offices don’t feel that their side of the
contract has been lived up to. WorkSafe will tell you of the 82 percent
satisfaction rate that they have. My answer back to them was: “I’m more
interested in those 18 percent who are not satisfied. Why are they not
satisfied? What changes do we need? What kind of cultural changes do we
need?” Cultural changes are happening as we speak, and I’m getting some
reports that they are changing.
[5:05 p.m.]
They’re hiring more staff in different areas so that they can
reply and respond to those workers’ inquiries in a timely fashion and
the workers get the support and the benefits in a timely fashion. The
most difficult part for the workers is that when they’re not getting the
income, they can’t go to work, and they get frustrated by the
complexities of navigation through the WorkSafe rules and policies. Once
the case is denied, as you know, the whole system gets in gear, and it
takes a long time for them to get the benefits that they’re entitled
to.
It’s not only just the benefit side but also the treatment side,
the care that they need. The goal should be — that’s exactly what I
relayed to the board: when a worker is injured, you treat them with
respect and dignity and then give them the support and care that they
deserve to help them get back to their pre-injury job, if that’s at all
possible.
I want to go back even a few steps earlier, before that, which
means prevention. I’m saying to them: “You must have a strong
preventative and enforcement regime so that we can cut down on those
injuries and deaths in those workplaces.” I believe firmly that the
workers who go to work must come back to their families in the same
shape that they went in, in the morning or in the afternoon, before
their shift. That’s my goal. I am working on this, Member, and I want to
thank you for bringing that up with me.
D. Barnett: Will there be some public engagement or sector engagement as you
move forward with new policies with WorkSafe B.C.?
Hon. H. Bains: Of course. As I have canvassed here earlier about other changes —
labour code changes, employment standards changes — and now WorkSafe,