2002 Legislative Session: 3rd Session, 37th Parliament

HANSARD

The following electronic version is for informational purposes

only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

MONDAY, NOVEMBER 4, 2002

Afternoon Sitting

Volume 9, Number 16

CONTENTS

Routine

Proceedings

Page

Introductions by Members

Introduction and First Reading of Bills

Community Care and Assisted Living Act (Bill 73)

Hon. K. Whittred

Forest and Range Practices Act (Bill 74)

Hon. M. de Jong

Statements (Standing Order 25 B )

Conference on mental illness and the workplace

R. Stewart

Adoption awareness

B. Locke

Safety of international students in B.C.

L. Mayencourt

Oral Questions

Enforcement of environmental standards in forest industry

J. Kwan

Hon. M. de Jong

Hon. J. Murray

Consultation process on Forest Practices Code

J. MacPhail

Hon. M. de Jong

Kyoto accord

R. Nijjar

Hon. R. Neufeld

Memorandum of understanding on services for aboriginal children

S. Brice

Hon. G. Hogg

Tabling Documents

Ministry of Finance, report of guarantees and

indemnities authorized and issued for the fiscal year ended March 31, 2002

Committee of the Whole House

Residential Tenancy Act (Bill 70)

J. Kwan

Hon. R. Coleman

J. MacPhail

Vital Statistics Amendment Act, 2002 (Bill 68)

Reporting and Third Reading of Bills

Vital Statistics Amendment Act, 2002 (Bill 68)

Second Reading of Bills

Open Learning Agency Repeal Act (Bill 69)

Hon. S. Bond

J. MacPhail

R. Hawes

[ Page 4255 ]

MONDAY, NOVEMBER 4, 2002

The House

met at 2:04 p.m.

Introductions by Members

MacPhail: I have two introductions to make. One is that we're joined today

by a group of, I think, mostly women, who are the heart and soul of our

government. They're the administrative services component representatives of all

the people who do the hard, behind-the-scenes work in government. Let me name

them, please: Sandi McLean from Victoria, Lori Joaquin from Quesnel, Katie Scott

from Victoria, Elaine Burbrick from Coquitlam, Dorothy Barker from Courtenay,

Dolly Zawaduk from Kelowna, Russell Katzer of Victoria, Terrence McKenny from

Victoria, Peg Orcherton from Victoria, Leslye Nixon from Coquitlam, Joanne

Harder from Kamloops, Louise Dunn from Cranbrook, Sue Wilkie from Nelson, Rhonda

O'Toole from Fort St. John, Susie Veld from Prince George, Marnie Grafton from

Prince George and Rusty Blanes from Terrace. Please say thank you and welcome.

[1405]

My second

introduction is from farther away but is still a representative of the public

service. Steven Miles from the Queensland Public Sector Union in Australia joins

us here today. Would the House please make him welcome. He's accompanied by Bill

Harper.

Hon. G.

Halsey-Brandt: Today in the members' gallery, I would like to acknowledge 11

second- and third-year political science students from Linfield College in

McMinnville, Oregon, which is just south of Portland and one of the oldest

colleges on the Pacific coast. They're here with their professor, Dr. Dawn

Nowacki. I'm very pleased to be meeting them this afternoon as they further

their study on British Columbia's political system. Of course, with tomorrow's

mid-term elections in the United States, this will certainly give them the

opportunity to compare and contrast the two systems. Would the House please make

them feel welcome.

J. Les: I

would like to welcome two people to the House today. The first is Sarah Bonner,

who is the managing director of the government caucus. With her is her mother,

Sydnie Bonner, joining us in the House today and celebrating her birthday. I'm

reliably informed it's her thirty-ninth. Would the House please make them both

welcome.

S. Orr:

I am very pleased today to introduce a person by the name of Marc Owen-Flood. If

you recognize the name, his father is the Hon. Dermod Owen-Flood. Marc was the

past president of the Victoria Real Estate Board, and he's now the chairman of

the government liaison committee. He's also an absolutely fabulous realtor, and

I would like this House to please make him very welcome.

Hunter: As we approach that important national holiday Remembrance Day, a

week from now, it's appropriate that today in the precinct are approximately 50

air cadets from 205 Collishaw Air Cadets in Nanaimo. These are young people who

are carrying on a proud military tradition. Will the House please make them

welcome.

J. Kwan:

Visiting us today are two guests from the Tenants Rights Action Coalition, Kris

Anderson and Linda Mix. They are strong community advocates for tenants rights

and strong advocates for housing rights. They've come to the Legislature today

to scrutinize the debate on the Residential Tenancy Act changes and to also,

hopefully, express their concern to the minister with respect to the bill.

Chutter: I would like to introduce to the House today a fellow rancher and

the president of the B.C. Cattlemen's Association, Agnes Jackson. Would the

House please make her welcome.

[1410]

Hon. M.

de Jong: The government has embarked on a project over the last year, and

I'm pleased today that a number of the individuals who have been involved in

that project and made valuable contributions to it are here in the House. I hope

the House will indulge me as I list some of them that are present: from Prince

George, Mayor Colin Kinsley; Port McNeill, Mayor Gerry Furney; from the Truck

Loggers Association, president Rick Jeffery; from the B.C. Chamber of Commerce,

president John Winter; from Weldwood of Canada, president and CEO Jeff Hearn;

from the B.C. Institute of Agrologists, president Larry Bomford; from Slocan,

president and CEO Jim Shepherd; from the Association of Professional Biologists,

president Mel Kotyk and executive director Linda Michaluk; from Lignum, chairman

Jake Kerr; from the B.C. Cattlemen's Association, president Agnes Jackson; from

International Forest Products, president and CEO Duncan Davies and chief

forester Ric Slaco; from the Association of B.C. Professional Foresters,

president Bill Warner, executive director Van Scoffield; from Weyerhaeuser, the

VP of B.C. operations, Craig Neeser; from the Federation of B.C. Woodlot

Associations, president Chris Cunningham and Brian McNaughton; from Flavelle

sawmill, executive vice-president David Gray; from the Western Silviculture

Contractors Association, president Chris Akehurst; from Aspen Planers, president

Surinder Ghog; from the B.C. Lumber Trade Council, president John Allan; from

Mill and Timber Products Ltd., resource manager Hans de Visser; from Canfor,

chief forester Ken Higginbotham; from the Council of Forest Industries,

president and CEO Ron MacDonald; and from TimberWest Forest Ltd., president

[ Page 4256 ]

and CEO Paul McElligott. I hope all members will make all of these

individuals feel welcome here today.

Introduction and First Reading of Bills

COMMUNITY CARE AND ASSISTED LIVING ACT

Hon. K.

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

intituled Community Care and Assisted Living Act.

Hon. K.

Whittred: I move that Bill 73 be read a first time now.

Motion

approved.

Hon. K.

Whittred: I am pleased today to introduce the Community Care and Assisted

Living Act. This legislation replaces Bill 16, which was introduced last April,

as part of a consultation process with facility operators, client groups and

individuals.

Consultation

took place via 11 sessions in six communities, website consultations and written

submissions. We listened to British Columbians and heard, first of all, that the

current Community Care Facility Act, which dates back to 1969, is outdated,

overly prescriptive and complex.

We also

heard that the way we are doing things today does not meet the needs of children

receiving care in child care settings and of persons in residential care.

We listened

to British Columbians about how to make things better. With their input we have

a strong bill that streamlines, updates and modernizes the governance of British

Columbians' community care and child care, including the significant addition of

a new

section to address assisted living.

This bill

establishes clear distinctions between community care facilities and assisted

living residences, and will ensure that the health and safety of those in care

is not compromised.

Assisted

living is an important element of this government's new-era commitment to meet

the needs of B.C.'s growing and aging population by providing an additional

5,000 home and community care spaces by 2006. With this bill we are making a

solid step towards meeting those goals.

I now move

that Bill 73 be placed on orders of the day for second reading at the next

sitting of the House after today.

Bill 73

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

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

FOREST AND RANGE PRACTICES ACT

Hon. M. de

Jong presented a message from Her Honour the Lieutenant Governor: a bill

intituled Forest and Range Practices Act.

Hon. M.

de Jong: I move that Bill 74 be read a first time now.

Motion

approved.

[1415]

Hon. M.

de Jong: This government was elected on a promise to establish a workable,

results-based Forest Practices Code with tough penalties for non-compliance.

Today the introduction of Bill 74, the Forest and Range Practices Act, fulfils

that promise.

This

legislation will enable government to create a forest management system for

British Columbia that is light on bureaucracy and focuses on environmental

protection. It fulfils our commitment to cut regulation without compromising

environmental standards. The act is called the Forest and Range Practices Act.

That's because it impacts not only those large licensees. Thanks to the input we

received, we've addressed the distinct needs of many smaller operators who work

in our forests, including people like ranchers and woodlot licence holders.

B.C.'s

forest industry has long laboured under a system that seemed to have more to do

with processing paperwork than protecting forest values. This bill changes that.

It will set clear standards. Forest licensees, woodlot owners, ranchers and the

resource professionals that work with them will decide the best way to achieve

those results. They will be accountable for delivering those results, and there

will be tough penalties for any that fail.

I'm pleased

to advise that the accountability of resource professionals involved in forest

and range management will also be enhanced. Subsequent legislation will create a

new college of applied biology act. There will be amendments to the Foresters

Act and the Agrologists Act.

This

legislation is the product of valuable advice that we received through an

extensive consultation process earlier this year. In particular, I want to thank

Prof. George Hoberg, from the University of British Columbia, and the member for

North Island and the members of his committee who took submissions from over 400

individuals and agencies.

We have no

intention of turning back the clock. Rather, we are looking to the future, where

British Columbia's forest industry is given the opportunity to do what it does

best, and that is to find innovative ways to practise sustainable forest

management.

Mr.

Speaker, I move that the bill be placed on orders of the day for second reading

at the next sitting after today.

Bill 74

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

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

[ Page 4257 ]

Statements

(Standing Order 25

b) CONFERENCE ON MENTAL ILLNESS AND THE WORKPLACE

Stewart: Mr. Speaker, last Thursday I was pleased to join the Minister of

State for Mental Health at an important conference on clinical depression and

anxiety in the workplace. Anxiety disorders and clinical depression combined

will affect some 350,000 British Columbians in their lifetimes. Mental illness

is the fastest-growing cause of workplace disability. This year it will account

for more than 60 percent of all short-term disability claims.

Certainly,

one of the most vocal and effective public advocates for this issue is talk-show

host Rafe Mair, who spoke eloquently of his own personal fight with clinical

depression. Another media personality, Kevin Evans, also added tremendously to

the discussion with his personal experience. The Premier, a longtime advocate of

mental health issues, spoke passionately about the challenges we face in pushing

for greater acceptance of this important workplace health issue and the

consequences of not addressing it.

One of the

real shames of this outstanding conference, though, was that the president of

the BCGEU was a no-show for political reasons. George Heyman had committed to

playing an important role as a presenter but apparently cancelled out because of

the Premier's presence at the conference. It's truly a shame that politics would

be a barrier to working on an important conference such as this, a conference

whose main purpose is the welfare of employees, the workers of our community.

[1420]

I want to

congratulate the B.C. division of the Canadian Mental Health Association, all of

the conference organizers and all the attendees who spent an important day

addressing a very important issue. We have to improve the way we deal with

mental illness in the workplace and elsewhere in our society. According to some

studies, less than 7 percent of the workforce currently living with mental

health problems receives adequate treatment. That's a sobering fact. This isn't

a political issue — or it shouldn't be. It's a health issue, and we must

address it.

ADOPTION AWARENESS

Locke: November is Adoption Awareness Month. It's a great honour to

celebrate with all the families that have been touched by adoption. My family is

one of those that has been blessed by adoption. There is no greater joy in

anyone's life than their children, and adoption has given my husband and me that

incredible gift.

Over 700

older children and young adults in our province are in desperate need of a

devoted and stable family, and the Ministry of Children and Family Development

is placing its emphasis on the adoption of these precious children. Each child's

situation is unique. Some birth parents make the difficult and unselfish

decision to give up their child for adoption, while other children are taken

into custody by the Ministry of Children and Family Development.

Many of the

children currently waiting for permanent families have suffered abuse and have

serious challenges. The Minister of Children and Family Development makes every

effort to ensure that the specific needs of each child are complemented by their

adoptive family.

You don't

have to be wealthy or married or childless to adopt. Adoption is one of the very

important ways to support and encourage the healthy development of children.

Adoption is about giving, sharing, caring and nurturing and, as I can personally

attest to, is a most rewarding experience. During the month of November I

encourage everyone to participate in adoption recruitment and awareness events

in their communities.

SAFETY OF INTERNATIONAL STUDENTS IN B.C.

Mayencourt: My interest in international student safety has been driven by

the senseless attack against Ji-Won Park, a young Korean student who resided in

my riding. This talented and outgoing young person is undergoing treatment here

in British Columbia, but she will face a lifetime of challenges resulting from

this attack. My concern has heightened with other incidents, most recently the

murder of Amanda Zhao.

There are

currently 60,000 international students in British Columbia. They're here as our

guests. They're living here while they access our education system, and they

bring much-needed revenue to our private language schools around the province.

As host we

have a duty to protect these young people, and no aspect of that duty is more

important than their physical safety. British Columbia has a well-deserved

reputation as a safe, clean and desirable place to be. Unfortunately, the

attacks on Ji-Won and others have brought that excellent reputation into

question.

We have a

duty to protect these students, to safeguard the safety of these guests to our

province, at the same level we provide to everyone else. International students

likewise have a duty to protect themselves, as well, and to develop lines of

communications with their schools, police authorities and family and friends.

Language

schools and the agencies that match them up with students must communicate more

effectively with students in their home countries to ensure their safety. The

community at large can also help. Over the past few months I have been meeting

law enforcement personnel, civic leaders and others committed to addressing

these complex challenges. Many of these have had great success in getting

messages about safety to international students, but much more must be done.

Together, we must all

[ Page 4258 ]

work to make B.C. a safe, desirable place to live and learn.

[1425]

Oral Questions

ENFORCEMENT OF ENVIRONMENTAL STANDARDS IN FOREST INDUSTRY

J. Kwan:

Big forest companies gave the Liberals over $2.5 million in campaign donations.

Ainsworth Lumber is one of those companies. It has one of the worst

environmental records in B.C. Recently it pleaded guilty to dumping harmful

substances into the Seton River. According to leaked Ministry of Water, Land and

Air Protection documents, Ainsworth Lumber would now receive automatic approval

for construction projects it wants to undertake near B.C. streams and rivers.

Can the Minister of Water, Land and Air Protection explain why a company with a

long environmental rap sheet will now be given automatic approval to proceed

with construction projects in B.C.'s watersheds and streams?

Hon. M.

de Jong: Well, happily, the member is going to have an opportunity to

discuss in detail in the days ahead the regime we are putting in place to ensure

there actually are appropriate environmental safeguards in place that properly

balance the absolute need to ensure there is adequate protection, to ensure that

we maintain the highest possible environmental standards but do so in a way that

makes common sense, as well, and doesn't drive investment from this province.

I'm looking

forward to the debate that I know is about to unfold. As we have that debate,

let us keep in mind that it was this member and the government that she was a

member of that had a different sense of balance. That balance was: "We'll

promise to create 38,000 jobs and instead lose thousands upon thousands of jobs

in the forest sector." Those days are over.

Mr.

Speaker: The member for Vancouver–Mount Pleasant has a supplementary

question.

J. Kwan:

Let's be clear. It's the leaked document of the Minister of Water, Land and Air

Protection's ministry which shows she's not doing her job. Rather than stopping

pollution before it happens, the Minister of Water, Land and Air Protection is

moving to a system where polluters are being punished after damage has already

been done. The only problem is that the minister has fired most of the people

who do the monitoring. It is akin to installing fire alarms in a house after the

house has been burned down.

Again, to

the Minister of Water, Land and Air Protection: can she explain how her

kid-glove approach to polluters is supposed to work with forest companies that

are logging in the same — and some of British Columbia's most sensitive —

ecosystems?

Hon. J.

Murray: Under our approach, my ministry will be focused where it should be,

which is on setting standards and making sure they are enforced. Over the years

the Forest Practices Board has complained again and again that the former

Ministry of Environment did not enforce the Forest Practices Code. Why? Because

they were tied up in their offices doing plan after plan and….

Interjections.

Mr.

Speaker: Order, please. Order, please.

Hon. J.

Murray: I am very pleased to say that I have been part, from the beginning,

of a new approach to the Forest Practices Code, a results-based code that will

have my ministry staff actually in the field where they can do the most good:

protecting the environment.

Interjections.

Mr.

Speaker: The member for Vancouver–Mount Pleasant has a further

supplementary. Let us hear the question, please.

J. Kwan:

If the minister's approach to enforcement is the example of Ainsworth Lumber,

where she actually approves automatically construction approvals for this

company, which has a long history of environmental violations…. You know, no

one believes the minister is serious about protecting the environment, and they

have good reason to suspect her motives. Thirty-two of B.C.'s biggest polluters

gave the Liberals more than $1.9 million to fight the last election. In return,

she took these companies off the government's environmental non-compliance

report. In fact, she stopped publishing the report altogether.

Can the

Minister of Water, Land and Air Protection explain to British Columbians how

they are to have any faith in her when she's fired one-third of her employees,

when she's granting automatic approvals to companies who want to construct in

B.C. streams and watersheds and when she's shielding B.C.'s biggest polluters

from public scrutiny?

[1430]

Hon. J.

Murray: The non-compliance list that the member opposite is talking about

had taken 18 months to publish under her government's watch and was a document

that reflected a compliance system in disarray. I've actually asked my staff to

come forward with a strategy for compliance reporting that will be systematic…

Interjection.

Mr.

Speaker: Order, please.

Hon. J.

Murray: …will be provincewide…

Interjection.

[ Page 4259 ]

Mr.

Speaker: Order, please. Order.

Hon. J.

Murray: …and will make sure that we know who is in compliance and who is

not.

CONSULTATION PROCESS ON FOREST PRACTICES CODE

MacPhail: No wonder that when this government is faced with doing some hard

work around environmental protection, this minister just does away with it,

gives up and says: "Oh, we won't bother publishing a non-compliance

list." The last non-compliance list was August of 2001. No wonder people

are concerned about the process that leads up to this legislation that was

tabled today.

Let's talk

process today. The list of people who are here today are a fine group, a fine

group of opinion leaders, but there are many people missing from the list. The

Minister of Forests invoked the name of Dr. Hoberg, who did do a review of the

consultation process. Let's see what Dr. Hoberg actually said. The report made

it clear. He told the government it should conduct additional discussions with

first nations prior to finalizing the results-based code.

Can the

Minister of Forests say if he missed people from first nations from his list of

introductions today, or did he ignore Dr. Hoberg's recommendation? Has he shut

first nations out of the development of a new code?

Hon. M.

de Jong: I know times are tough, but I'm going to speak to the Minister of

Finance. We've got to find some money for the research staff over on the other

side of the House.

We engaged

in an unprecedented degree of consultation. Two committees: an MLA committee

that met publicly in 13 communities, Professor Hoberg…. They entertained

submissions in excess of 400 submissions. Following that, we embarked on a

second round to consult with people. We involved first nations, upwards of 21

submissions from first nations.

Look, let's

face the facts. There's a group over there — and I guess this member is one of

them — who likes to paint cattlemen, woodlot owners and actually members of

the IWA as being hostile to the environment. We're not amongst that group. We're

for environmental practices, but we're for putting people back to work in B.C.

as well.

Mr.

Speaker: The Leader of the Opposition has a supplementary.

MacPhail: It's interesting that when I talk about first nations, the

minister talks about environmentalists and completely ignores the issues I

raised around first nations. No wonder the Carrier-Sekani tribal council had to

write to this minister just last week. Here's what the Carrier-Sekani tribal

council put to the government. Everyone here in this chamber knows that land use

certainty is key to investment here. Everyone knows this, and first nations are

key to that.

Here's what

the Carrier-Sekani tribal council did last week. On October 22 they put the

government on notice that they are exploring the full range of legal options to

defend their aboriginal title and rights against this government's infringements

through the new Forest Practices Code.

[1435]

Interjection.

MacPhail: The Minister of Finance says: "What a surprise." Well,

they've taken this action because the government is ignoring its obligations to

consult first nations as defined by the courts and as recommended by Dr. Hoberg.

Again to

the minister: can he tell this House how much the government has put aside to

spend on litigation defending the new Forest Practices Code?

Hon. M.

de Jong: All the research dollars in the world won't help this member if she

doesn't listen to the answer or read the documents, and that's the fact of the

matter.

I'm

uncharacteristically going to try and keep this brief. The irony is this. The

Carrier Sekani and the government are indeed having a discussion, but here is

the irony. They have withdrawn from an agreement that this government is

endeavouring to uphold, which that member's government entered into. Isn't that

ironic? And this just in. Isn't it ironic that this member stands up and

criticizes this government for enforcing an agreement her government entered?

That's the height of irony.

KYOTO ACCORD

Nijjar: My question is to the Minister of Energy and Mines. Recently my

constituents were alarmed to learn of the federal government's suggestion that

nuclear-generated electricity should be considered as a means of meeting Kyoto

targets. Reducing greenhouse gas emissions is a laudable goal but not at any

cost. My constituents of Vancouver-Kingsway do not support nuclear power plants,

nor should the construction of nuclear power plants be considered as an

environmental step forward.

Will the

Minister of Energy and Mines tell us if, under the federal government's current

plans, nuclear power would have to be considered?

Hon. R.

Neufeld: The use of nuclear energy is not in the current plan that was put

forward by the federal government, but it has been talked about quite widely by

the minister responsible, Mr. Dhaliwal, in recent news articles about the use of

nuclear energy to deal with the Kyoto protocol. We in British Columbia are

totally opposed to nuclear energy in the province and will work to that end.

Mr.

Speaker: The member for Vancouver-Kingsway has a supplementary question.

Nijjar: The majority of British Columbia's power is produced emission-free

by B.C.'s large dams.

[ Page 4260 ]

Clearly, B.C.'s dams reduce the overall emissions released in this province.

If the purpose of Kyoto is to reduce the overall emissions released in Canada,

will the Minister of Energy and Mines tell us why the federal government will

not give British Columbia credit for the large steps it has taken with

investments in hydro and forestry?

Hon. R.

Neufeld: Yes, the British Columbia government, my colleague the Minister of

Water, Land and Air and myself lobbied hard on the fact that we should be

credited for our forestry sinks. We should be credited for our agricultural

sinks. We should have credit for clean energy exports, and we should have credit

for the industries that have actually reduced greenhouse gases in the province.

After all, British Columbia on a per-capita basis is the second-lowest emitter

of greenhouse gases in all of Canada.

Through all

that arguing, we were not able to convince the federal government that (

a) they

should give us our forestry and agricultural sinks or (

b) that they should give

us any credit for clean energy exports. In fact, COP-7…. Just understand that

the minister responsible, Mr. Anderson, says it's off the table altogether. We

will not accept a plan that does not address those items for the people of

British Columbia.

[1440]

MEMORANDUM OF UNDERSTANDING

ON SERVICES FOR ABORIGINAL CHILDREN

Brice: My question is for the Minister of Children and Family Development.

Recently the Premier signed a historic memorandum of understanding with the

aboriginal groups across this province. This agreement marks the first time that

first nations and the government have reached an understanding that puts the

interests of children first. Can the minister explain what the MOU means for the

first nations children of British Columbia?

Hon. G.

Hogg: Unfortunately, aboriginal children and youth are seven times more

likely to be in the care of the state than non-aboriginal children and five

times more likely to be involved in a justice facility of the state than

non-aboriginal children. This memorandum of understanding allows us to work in

cooperation with the aboriginal communities to move forward and respond to their

needs at the local level. It means fewer children will be in the care of the

state because we'll develop safe care plans for them within the context of their

home and communities.

Just last

week the provincial medical health officer issued his report on the health of

aboriginal children. In that, he said that aboriginal children who are not in

the care of their own communities are more likely to be committing suicide. The

rates are higher. This means we're going to have services and responses at the

community level, and we'll see a reduction in the suicide rates.

I think,

most importantly, this represents a better future for aboriginal children in

care. It means they're going to be more likely to graduate, more likely to be

employed and more likely to have a healthy future. It means that, because those

services are provided at the local level. Their opportunities are going to be

much better, because we know research and practice tell us that when services

are provided in that context, they have a better future. We're looking forward

to that.

[End

of question period.]

Tabling Documents

Hon.

Gary Collins: I have the honour to present the guarantees and indemnities

authorized and issued report for the fiscal year ended March 31, 2002, in

accordance with the Financial Administration Act,

section 72(8).

call committee stage debate of Bill 70.

Committee of the Whole House

RESIDENTIAL TENANCY ACT

The

House in Committee of the Whole (Section

B) on Bill 70; J. Weisbeck in the

chair.

The

committee met at 2:44 p.m.

On

section

J. Kwan:

I wonder if, before we begin, the minister could introduce his staff.

Hon. R.

Coleman: It's Karen Ayers, senior policy analyst for the ministry.

[1445]

J. Kwan:

Under the

definitions section,

section 1, the implication of adding, under

"security deposits," postdated cheques for rent…. Is it the

intention of the bill to allow for landlords to demand postdated cheques for

rent? This seems to be consistent with the minister's remarks in the House. In

many cases, tenants want to pay by postdated cheques, but it should be on the

basis of mutual agreement. In fact, many agencies and advocates who deal with

tenants, particularly the Tenants Rights Action Coalition, have heard from

tenants that landlords have moved to requiring that postdated cheques be given

to them. Of course, this can potentially put tenants at risk.

Tenants

ought to enter into giving postdated cheques to the landlords if it is on the

basis of mutual agreement. The problem lies in this: when postdated cheques are

given, if the tenant moved out, as an example, it's not always the case that the

landlord actually gives back or tears up the postdated cheques in some

instances. The tenant then has to go and cancel the cheques. In some cases it

actually costs them

[ Page 4261 ]

money, depending on the banking agency with which they deal.

In adding

this new definition, "postdated cheques for rent," is it the intent of

the government to allow landlords to require postdated cheques?

Hon. R.

Coleman: The present act prohibits postdated cheques. This is to allow the

landlord to take postdated cheques and make it part of the agreement with the

tenant to do so.

J. Kwan:

I don't believe it's the case that the previous act — actually, the

current act — prohibits postdated cheques. It doesn't actually stipulate it by

providing for postdated cheques. There seems to be some discrepancy around that

issue.

Can the

minister then state clearly that by adding this definition, it does not allow

the landlords to require tenants to provide postdated cheques? Postdated cheques

could be provided if it is mutually agreed upon between the two parties.

Hon. R.

Coleman: My understanding is that this does not allow them to require it but

allows them to do it, which they couldn't do before.

For the

member with regards to postdated cheques not being allowed in the previous act,

it was in the definition under "security deposit."

J. Kwan:

Just to be clear then, a landlord cannot demand postdated cheques from a

tenant at any point in time.

Hon. R.

Coleman: It can be set out in a tenancy agreement and agreed to by the

parties.

J. Kwan:

Can the landlord make it into a condition of tenancy?

Hon. R.

Coleman: The tenancy agreement is probably a condition of tenancy, so if

it's in the tenancy agreement a particular landlord has, it would be a mutual

agreement between the tenant and the landlord when they enter into the tenancy.

J. Kwan:

Could the landlord refuse tenancy to a prospective tenant if the tenant is

not prepared to provide postdated cheques?

Hon. R.

Coleman: Theoretically, yes, because that would mean they wouldn't have come

to an agreement on the tenancy agreement.

J. Kwan:

In other words, adding this definition into the act actually allows for a

landlord to require postdated cheques as a form of tenancy, as a right to

tenancy by the tenant, and if the tenant refuses, the tenant may well not have

access to the rental accommodation. It has the same effect that is now being

experienced by some of the tenants where landlords are requiring postdated

cheques and don't give them back once the person vacates. It puts the onus on

the tenant to go cancel the postdated cheques and, of course, incur extra costs.

[1450]

It makes no

sense to put in such a requirement so heavily biased against a tenant in favour

of the landlord. The landlord has all of the control to decide who to rent to

already. To add in a provision to say, "Unless you give me postdated

cheques as a condition of tenancy…" simply further heightens the

landlord's control of the situation. It makes absolutely no sense. I don't know

how this is advantageous for tenants. How is this advantageous for tenants?

Hon. R.

Coleman: This is actually normal business practice in a lot of areas of

consumer relationships between two parties, and I don't see that this is….

This isn't set out to make it adversarial. It's just to have an option that

wasn't contained in the previous act for the landlords with regards to their

business relationship with their tenants.

In actual

fact, in discussing it with different people in the industry, both sides have

felt that they needed as seamless a relationship in the ability to pay as

possible. There actually is, I guess, the ability to also do automatic debits,

as there are in some strata corporations with regards to that, but we haven't

dealt with that in detail.

Tenancy

agreements are going to be there for people to enter into a business

relationship with regards to a tenancy, and this can be part of the tenancy

agreement.

J. Kwan:

The only problem is that by providing this requirement, if it is not mutually

agreed upon, the prospective tenant actually suffers a consequence; that is, the

landlord could refuse to rent to this tenant. That has huge implications,

especially when rental accommodations in British Columbia, particularly in the

lower mainland, are scarce. In the area of Vancouver-Burrard, as an example, the

vacancy rate is something like less than 4 percent. I think it's 2 percent, to

be more precise. That really puts a lot of stress on tenants.

This change

in the legislation allows the landlord to penalize tenants for not agreeing to

provide postdated cheques, and then there's a consequence which the tenant may

be faced with. I fail to see how that is helpful.

In terms of

business practice that the minister talks about, as far as I can see, the

previous act does not preclude you from providing postdated cheques. If the

tenant wants to do it and if the landlord wants to accept it — if it's

mutually agreed upon — I think that they can. Where does it say in the act

that it prohibits postdated cheques?

Hon. R.

Coleman: Under "security deposit" in the previous Residential

Tenancy Act subsection (e): "a prepayment of rent for other than the first

month of a tenancy agreement."

J. Kwan:

The way I read that, it doesn't actually preclude you from providing postdated

cheques. It just

[ Page 4262 ]

says that security deposit "means money or property advanced or

deposited, or a right given, by or on behalf of a tenant or prospective tenant,

to be held or enforced by or on behalf of a landlord…a prepayment of rent for

other than the first month of a tenancy agreement." So a person is required

to prepay rent for other than the first month. That is what it says in the act.

It doesn't say that if you do end up, through mutual agreement with the landlord

and a tenant, giving postdated cheques, you've somehow violated the act. It

doesn't actually say that. I don't believe it says that.

[1455]

Quite

frankly, having been a tenant before, I myself gave postdated cheques on mutual

agreement with the landlord, especially when I rented an apartment here in

Victoria. Sometimes on the first of the month I'm not in Victoria, and it was

actually a lot more beneficial for me to give my building manager postdated

cheques just in case I happened not to be here that week, so I wouldn't end up

not having paid my rent and then being evicted from the building. But now the

difference in this act is that by adding the postdated-cheque provision for

rent, it does more than allow for mutual agreement for postdated cheques to be

used. It can be utilized as a penalty against tenants by the landlord, if the

landlord puts it into the tenancy agreement.

Why doesn't

the minister then, if the intent is simply to facilitate — if he thinks that

the old act precludes you from using postdated cheques — just simply provide

it as an option and say that postdated cheques for rent can be utilized as an

option if it's mutually agreed to by both the landlord and the tenants so the

landlord understands very clearly that the landlord cannot put into the tenancy

agreement a requirement that postdated cheques be given? That way, you're not

penalizing anybody. You're simply facilitating the process, if the minister

thinks that the old act does not allow for this facilitation.

Hon. R.

Coleman: Let me see if I can get this explanation for the member so that we

can both understand it.

If you take

postdated cheques today, under the definition of a security deposit…. If you

were to take postdated cheques for, let's say, six months of a tenancy in

advance as part of the rental agreement, you're technically taking more than a

half month's damage deposit, because you're taking those cheques in advance. The

feeling is that under the definition of this section, that had to be cleared up.

You can still only take a half month's damage deposit, but the extension over

was that it was a problem with regard to the ability to do one versus the

definition of the other.

J. Kwan:

But if the minister suggests that the current act disallows postdated cheques

under

section 1(e), that's one thing. But the remedy that the minister has

brought forward under this act does not fix that problem. It does not. It goes

further to allow for penalties to be put in place — I hope inadvertently. From

the way it sounds from the minister, it's not so.

Somehow if

a landlord chooses to put in the tenancy agreement that you're required to

provide postdated cheques under the definition of the act, then if you don't

provide them, I can refuse tenancy to you. If that's not the intent of the

government, then it should state that clearly in the legislation. But the

minister just rose up minutes ago to say that yes, a landlord could do that.

They could reject someone's tenancy if they didn't provide postdated cheques.

They could make that a requirement of the tenancy.

There's

something wrong with that process. It does not remedy the issue that's been

raised by the minister. It actually goes to penalize tenants in a very negative

way, to the point that they would actually, potentially, lose their tenancy if

they were not prepared to provide postdated cheques.

Hon. R.

Coleman: It's no different than if you said: "I'm going to allow pets

in my tenancy, and this is the description of pet that I'm going to allow. And

you're going to agree to that as part of the tenancy agreement." This is

also part of the discussion and negotiation of a tenancy agreement with a

landlord. The landlord and tenant have to come to that agreement. I don't see

that as a problem.

J. Kwan:

We'll get to the pets issue in due time. There's a huge

section here that also

penalizes tenants when it comes to pets. We will have a lot of questions and

debate on that

section — make no mistake about it.

[1500]

This is not

the same as facilitating in many ways, as the minister would like to make it

sound. The minister is providing provisions within the act right off the top in

section 1 to potentially deny tenants the right to access rental accommodation.

They're to be penalized for it, to put all of that onus on the negative side

onto the tenants. The landlord could absolutely have control in every way, shape

or form.

You know,

why doesn't the act add in a definition to say that landlords are required to

give postdated cheques back to the tenants when they vacate the building? The

reality is that this doesn't always happen, and sometimes landlords have gone as

far as to cash postdated cheques when the tenants have already vacated the

premises. The onus, then, again is on the tenant to go and cancel these

postdated cheques, which costs them an additional financial burden. Why is it so

lopsided towards the landlord's benefit and not towards an equal benefit for

both the tenant and the landlord?

Hon. R.

Coleman: I think it is equally beneficial to both landlord and tenant. It

just makes the relationship as to how the funds are collected or how they have

to be delivered on a monthly basis to the landlord. Obviously, it would be

irresponsible and unconscionable for a landlord to cash cheques when the tenant

is no longer there. There are provisions, obviously, within law and small claims

and what have you, but I can't see a land-

[ Page 4263 ]

lord going out and saying: "I'm going to continue to charge rent for an

empty thing."

In the

tenancy agreement there should be a relationship with regards to the postdated

cheques. When the tenancy agreement is ended, there should be a clause in there

that says the cheques are returned to the tenant. Frankly, we could probably do

that in the design of the tenancy agreement that we'll do in regulation.

J. Kwan:

With the exception that it's not the minister who puts out the tenancy

agreement; it's the landlord who puts out the tenancy agreement. He said so

himself. Tenancy agreements will not be put out by regulation. It's designed by

the landlord. There is a substantive difference here.

What about

tenants who are on fixed incomes, many of them? Let's just take somebody who's

on income assistance, as an example. In fact, in my own riding there is a huge

number of people who are renters. Many of them actually don't have access to

banking services. They don't, so they don't have cheques. There is no capacity

for them to get cheques, because they don't have banking services. That is a

reality in my riding right now.

In that

instance, tenants in my own riding could be refused accommodation, because

they're not able to provide postdated cheques because they don't have a chequing

account. Does that not amount to discrimination?

Hon. R.

Coleman: This doesn't make it absolute that you have to take postdated

cheques. It's part of the relationship between a landlord and tenant. I know the

situation in the member's riding. I also know there are different forms of the

way that they pay their rents in particular areas of the province with regards

to the business relationship between a landlord and tenant. This is just one

more area. In the standard terms of the tenancy agreement that we will form in

regulation, we will make sure that your concern with regards to return of

postdated cheques is part of the standard terms of the tenancy agreement that

will apply.

J. Kwan:

To prevent discrimination, for someone to actually refuse tenancy to someone on

the basis of their ability to provide postdated cheques…. Really, it relates

to individuals who live in poverty. A lot of the people who live in poverty, as

I mentioned, may not have access to banking services, may not actually have

cheques available to them. They could lose their tenancy.

Why not put

in the regulation, then, that the landlord shall not penalize a tenant if it is

not mutually agreed upon that postdated cheques be made available? Why not put

that in? It just protects both the tenants and the landlord. It doesn't penalize

the landlord in any way, shape or form. It protects both sides. "If it's

mutually agreed upon, here's the way that you can do it. If it's not an option

for you, for whatever reason, that's okay too. On that basis you will not be

penalized for your access to accommodation from a rental point of view."

Hon. R.

Coleman: We don't think that's necessary, because the terms of a tenancy

agreement are agreed to by both parties prior to them entering into a tenancy

agreement. They have a mutual relationship going in. I don't think it's…. To

try and go that way, the next thing you would be wanting to "shall

not" this and "shall not" that. Frankly, that's the way we've

designed the act, and that's the way we'll proceed.

[1505]

J. Kwan:

With all due respect to the minister, I disagree. Simply suggesting that a

tenancy agreement will fix that is not true. It's simply not true.

Interjection.

J. Kwan:

If members actually have something to say in this chamber, I wish they would get

up and say it. If they think the opposition should not ask questions in this

chamber and they just want to move forward and ram this legislation through,

they need to understand the rules of the House — that members can actually

engage in questions. I would appreciate that opportunity as the only opposition

member, so far, who is asking questions of the minister about some of these

changes that will be hurtful and, in my view, discriminatory to the tenants.

When a

tenancy agreement is put forward by the landlord with the stipulation that says

the landlord could actually refuse tenancy to a prospective tenant if they don't

meet the conditions — and one of those conditions is that you're required to

provide postdated cheques — then there's discrimination against the tenants,

particularly those who don't have the ability or the capacity to provide

postdated cheques. There are many people who are in those circumstances.

It astounds

me for the minister to simply say: "Hey, don't worry; be happy."

Perhaps he's not in a situation where he would have to rent accommodation, where

his home would be dependent on that and where he may not have access to banking

facilities to actually get a cheque. The answer the minister has given on this

issue is very disappointing from the opposition's perspective. I was hoping he

would assure me that unless it's mutually agreed upon, there would not be a

requirement that tenants give postdated cheques to the landlords.

On another

question. With respect to the definition, where it states under the tenancy

agreement definition that it includes a licence to occupy a rental unit, could

the minister please explain where it reads "…includes a licence to

occupy"? Is the intent to expand the coverage of their Residential Tenancy

Act to licensees — i.e., roommates — within the rental accommodation?

Hon. R.

Coleman: We can probably deal with this a bit more in

section 4, but this

act is actually…. As I understand it, the reason this is in the act — when

[ Page 4264 ]

went through this — is so that we're not going to be moderating disputes

between roommates with regards to their relationship in their own tenancy. This

is a landlord-to-tenant relationship, so it's not exclusive. It basically, by

definition, tells you who is covered by the act in

section 4 by telling you who

it doesn't apply to. Therefore, that takes care of the member's concern.

J. Kwan:

It's not the intent of this addition to expand to include roommates?

Hon. R.

Coleman: That's correct.

J. Kwan:

Pardon me. I'm suffering from a cold, so from time to time my voice may give. My

apologies.

[1510]

Under the

definition section, the terminology "tenant" is included. But under

(

b) it states that a tenant includes"…when the context requires, a former

tenant." The definition does not include the notion of a prospective tenant

— that is to say, someone who may become a tenant, someone who signed a

tenancy agreement and who has not yet moved in but will soon become a tenant in

accordance to the act. Because this

section actually has relevance to other

sections of the act, particularly

section 15, why would the minister not include

the words "prospective tenant" as well?

Hon. R.

Coleman: In actual fact, that question did come up in the drafting of the

act, as I understand it. By allowing that, it would have meant it would be open

to anybody in the province — that type of thing. When we're dealing with

legislative drafting, as the member knows, they look at those sorts of things,

and it was found that that wouldn't be appropriate to be in the act. Basically,

the context of subsection (

b) of "tenant" is so that a person who is

no longer a tenant can still go after, in the landlord and tenant relationship,

things like their damage deposit or damages that are owed to them by a landlord.

J. Kwan:

I'm sorry, Mr. Chair. I'm having a little bit of trouble actually hearing the

minister, especially towards the end. It just sort of becomes one big mumble. It

could be that because of my cold, my hearing is being affected. Could the

minister please repeat the last bit of his answer, and could he perhaps speak

into the mike a little bit more? I'm having just a little bit of difficulty

hearing the minister.

Hon. R.

Coleman: Subsection (

b) of "tenant," which is under the

definitions section, states: "…when the context requires, a former

tenant." It is basically about a tenant that is no longer a tenant who has

a dispute with the landlord. It would allow them to continue to be able to go

after a process, whether it be with regard to damages owed to them or to go

after the damage deposit.

J. Kwan:

Okay, that addresses one thing. However, for someone who is a prospective

tenant,

section 15 actually allows for recoveries of application fees, but this

section does not include a prospective tenant. Therefore, the recovery of

application fees…. If a landlord illegally collects one under

section 15, it

would not be possible, then, for the prospective tenant to bring the matter to

the Residential Tenancy Office for dispute resolution. That is another aspect on

which concerns have been raised. Could the minister please address that?

Hon. R.

Coleman: Maybe we can canvass this in more detail when we get to

section 15,

but I think

section 15 is actually good news for tenants, not bad news for

tenants. It actually prohibits a landlord from taking application fees and those

types of fees that have been in this industry before. It was something that the

tenants rights groups certainly identified for us as a concern of theirs with

regards to the act, and of course we do have enforcement and penalty provisions

within the act.

[1515]

I guess the

one challenge the member is questioning is if it's in advance of a tenancy

agreement, because we haven't put them in the definition section, the

arbitration issue might not apply to them. Maybe by the time we get to that

section, I can clarify that answer for you. But I think you may be right that

they would have to seek it in a small claims court, and/or they would make a

complaint to us, and we would follow through on a landlord that's in breach of

the act.

J. Kwan:

I'm not disputing that

section 15 is good by putting this in to say that here

are certain things that a landlord cannot do — i.e., accept an application for

a tenancy, etc., which we'll engage in further discussion on under

section 15.

The problem is that I don't see the enforceability of it. Especially, it makes

no reference in terms of who is a tenant under the

definitions of the act. If

you stipulate very clearly that a tenant is somebody who may be a former tenant,

someone who has left a tenancy — but a damage deposit, among other things….

A person can actually have recourse to go through to ensure that their rights

are being protected through the residential tenancy office. That is being

addressed in the definition for the purposes of who is a tenant.

Yet for

someone who is a prospective tenant — that is to say, someone who has not yet

moved in but is looking into moving into a particular accommodation…. If the

landlord at that point illegally collects an application fee, as an example,

under

section 15 the person then has no recourse under the Residential Tenancy

Act, because that person is not deemed to be a tenant under this definition. In

my view, it could be easily fixed if the intent is to say, you know, collecting

application fees is inappropriate for people who are looking for tenancies. If

at the end of the day, as an example, a person makes an application, and then

the tenancy agreement….

Just using

the example we're discussing now, if the tenants are required to provide

postdated cheques and,

[ Page 4265 ]

for whatever reason, the tenants are not able to, the application fee that

was applied to them should be null and void and the person should be returned

the moneys. Notwithstanding that this is actually against the law under

section

15, that person right then and there has no protection under

section 15, has no

protection under the act, because that person's not deemed to be a tenant as of

yet. People could be faced with tremendous disadvantages and abuses by the

landlord in that regard.

This could

be easily prevented by simply adding the words "or prospective" after

the word "former" and before the word "tenant," so that you

can actually say to people very clearly that former tenants as well as

prospective tenants should have protection, and the application of the act

applies to them. To that end, I have an amendment to make to

section 1, to add

in the words "or prospective" after subsection (

b) so that it would

read as follows. "Tenant includes…(

b) when the context requires, a

former…" and then adding the words "or prospective" tenant into

this definition.

Here is a

copy of…. Oh, you've got….

The

Chair: We have a copy.

J. Kwan:

Okay. Maybe I can ask: do you have copies for all of…?

The

Chair: We have copies of all your amendments.

J. Kwan:

Fantastic. Okay. I brought three copies up. If everybody's got copies….

[Section 1 is amended by adding the text highlighted by

underline:"tenant" includes

(

a) the estate of a deceased tenant, and

(

b) when the context requires, a former or prospective

tenant.]

the amendment.

J. Kwan:

I hope the minister will support this amendment. It's, I think, a friendly

amendment to simply state clearly and give protection for tenants who are both

former tenants under the definition of a tenant as well as individuals who would

become prospective tenants, so they have protection under the Residency Tenancy

Act.

The

Chair: Are you speaking to the amendment?

J. Kwan:

Yes, Mr. Chair. I'm just also seeking the minister's thoughts on this. Perhaps

he may actually accept this as a friendly amendment. I would like to hear the

minister's response on that.

Hon. R.

Coleman: We actually feel we can accept this amendment with regards to this

section. We had some discussion during leg review with regards to this. We would

like to just sort of get a quick opinion on it with regards to it, but if we

could just sort of stand it down for a bit, we could bring this amendment back

so we can have a bit of input on it.

It is a

concern identified. One of the concerns is that these fees are pretty low, and

with regards to…. If somebody actually goes to arbitration, their cost of

arbitration is about $40, and the fees have been $25 to $40. It's illegal. We're

expecting some discipline in the marketplace to make sure they follow the law of

the act. If it meets within what we think it does, then I think we could

probably accept the amendment. If we could just sort of move off this definition

for now and come back to the amendment, is that possible to deal with?

[1520]

The

Chair: Member, we could stand down the amendment, but that would mean we

would have to stand down the section. If that is the wish of the committee….

Hon. R.

Coleman: I think that's appropriate. Then we could move on to a couple of

other sections, and by that time we should be able to deal with it. Okay?

The

Chair: Is it the wish of the committee to stand down this amendment and the

section?

J. Kwan:

I'm fine about that. Perhaps before we stand it down, I could just make one

final comment, then. I note the minister made a comment that the fees may well

be low, that illegal charges of fees may well be low. That may well be the case,

and therefore, by going to the residential tenancy office to file a complaint, a

person may actually end up having to pay more. The other side of it, of course,

is that if you're required to go to small claims, you also have to pay a fee. It

kind of equalizes it. Perhaps this will just send a strong signal to people of

what "tenant" means and therefore, I think, is better protection for

the tenants.

I am

prepared to accept the standing-down of

section 1 until the minister further

investigates the proposed amendment, and then we can deal with that at a later

time.

The

Chair: Member,

section 1 is stood down.

On

section

J. Kwan:

Section 2 deals with what is included in terms of the types of properties or, if

you will, rental accommodations for the purposes of this act. For a long time

the community has advocated for residential hotels or rooming houses, if you

will, to be included under the provision of the Residential Tenancy Act. Yet

under this revision of the act, I don't see the addition of residential hotels

or rooming houses. Could the minister please explain why?

From my own

perspective, there are some 7,000 units of what we call SRO — single-room

occupancy — housing in my riding. These are all tenants. In fact, they are

tenants who pay the highest rent on a per-square-

[ Page 4266 ]

foot basis. They are essentially rooms that are about 10 by 10. If you're

very lucky, you will have a hotplate in your room. If you're triply lucky, you

might even have a bathroom. For the most part you don't, and it's all shared

facilities.

It's

definitely accommodations. The landlords for a lot of these hotels are

particularly unscrupulous and mistreat the tenants in a variety of ways. When we

were changing this act, I was hoping that we would include this class of tenants

so that they, too, can enjoy residential tenancy protection.

Hon. R.

Coleman: Actually, the reason we put the definition that's in "tenancy

agreement" under

section 1 was to include "a licence to occupy a

rental unit." It was put in that specifically to cover off that definition

within the relationship in residential tenancies. Then in

section 4 the act

identifies what it doesn't apply to. That basically takes care of the member's

concern.

If the

member wants more questioning of that section, fine. Otherwise, I think we're

prepared to move ahead with the amendment. If you want to go back to

section 1,

we can move ahead with the amendment and then move on.

J. Kwan:

I'm prepared to just stop for the moment and deal with

section 1, and then we

can come back to

section 2 on the amendment.

The

Chair: We'll refer back to

section 1.

section

1 (continued).

Amendment

approved.

Section 1

as amended approved.

section

2 (continued) .

J. Kwan:

If under

section 2 the intent is to actually cover off residential hotels or

rooming houses under the

definitions section…. I'm sorry. I have to sort of

refer back, because it does kind of jump all over the place in terms of where

each

section relates. If the words "includes a licence to occupy a rental

unit" include rooming houses and residential hotels, and as the minister

referenced under

section 4, it's also the intent under

section 4 to do that,

then why…?

[1525]

I mean,

it's just to sort of make it explicit, make it clear? Part of the rewrite of the

Residential Tenancy Act is exactly as the minister suggested in second reading

stage, and that is to put it in plain language so everybody understands who is

included, who is not included and what it all means. In that respect, when I

read it, it wasn't clear to me that rooming houses, as an example, would be

included as a class of tenants. Why not simply state very clearly under

section

2 that it includes residential hotels or rooming houses? If the minister is

amenable, I actually have an amendment to that effect that states this. It would

clarify and put into plain language very clearly who is included and who is not.

The

amendment under

section 2 would read as follows, Mr. Chair. It is underlined on

the amendment sheet. It says:

[Section 2 is amended by adding the text

highlighted by underline:

What this Act applies to

2(1) Despite any other enactment but subject to

section 4, this Act

applies to tenancy agreements, rental units and other residential property,

including residential hotels or rooming houses .]

Comments

from the minister.

On the

amendment.

Hon. R.

Coleman: Well, you win one and you lose one. I think we're fine in this

definition. We outline what it doesn't apply to in

section 4, and we're not in

favour of the amendment.

J. Kwan:

I hadn't realized this was meant to be more of a game, where a person would win

one or lose one. I was simply trying to advance these amendments in such a way

that would clarify the act and make it very clear, so people would understand

who is included and who isn't. I don't think it's contradictory to the intent of

the act, so I don't think it does any harm, and it is important from my

perspective. Why is that? A lot of people in my riding, as I've mentioned —

some 7,000 people — live in what we call SROs, in these rooming houses or

hotel rooms, if you will. Many of them don't know what their rights are a lot of

times. A lot of them are, in fact, denied a lot of these rights, and it's

unfortunate that this has to be the case. They ought not to be denied these

rights.

For the

purposes of clarity in the act, it would be useful — advantageous, I think —

for both the landlord and the tenants so that they know who falls under the act

and who doesn't and who has access to the protection of the Residential Tenancy

Act.

I move the

amendment in my name that has been passed around, and we'll have a vote on it.

Amendment

negatived on division.

Sections 2

and 3 approved.

On

section

J. Kwan:

Section 4 could also potentially have this ramification. When a person reads

this

section of the act, the concern is that students who are in student housing

may be exempted from the Residential Tenancy Act. In the past only dorm-style

housing was exempted. The question to the minister, of course, is why

self-contained apartments and townhouses should be exempted solely because they

are run by a college or university.

[1530]

If the

reason is to limit time to allow for the student to live in a particular

building, then one could use the

[ Page 4267 ]

option of a fixed-term tenancy agreement. There could be those kinds of

limitations if, in fact, that's the intent. If it isn't, then I see no reason at

all why student housing should be exempted from the Residential Tenancy Act.

Hon. R.

Coleman: This is something that the colleges and universities have

identified to us as being a problem in the past with residential tenancy.

Fixed-term tenancies don't actually work in this situation, because sometimes

the relationship is applied back to other levels of government funding or

applied to how long it's going to take to finish, whether it be a thesis or a

degree or whatever the case may be. It doesn't fit within the boxes of how you

would manage a normal tenancy.

There's

student representation on the boards of these tenancies, as I understand it.

There's an appeal mechanism, and there are rules and regs put in place on the

university side. This is something they felt would allow them to manage their

housing for their students in a better way.

The

Chair: Member for Vancouver–Mount Pleasant. Member, I've just had a

request by some members of the House. They're having difficulty hearing you. If

you could just speak up a tiny bit.

J. Kwan:

Okay.

Well, it

doesn't make sense to me that you would simply exempt an entire class of tenants

from accessing rights prescribed under the Residential Tenancy Act, if the issue

is about the term of the tenancy. If the issue is such that the educational

institution needs to somehow work out with the students what the term of the

tenancy is, then there's got to be some other capacity to do that, other than

simply saying to the entire class of students who access rental housing through

student housing: "In this instance you have no residential tenancy rights.

You're exempted from its application to you by law." It simply doesn't make

sense to go that far.

The

minister suggests that fixed-term tenancy doesn't work for the university. I'm

not quite sure what it means when it comes to issues around funding, and so on

and so forth. Fixed-term tenancies could be agreed to and entered into by both

parties — the provider of the housing as well as the student who is accessing

it — and the terms of the fixed-term tenancy could be defined in the act under

"tenancy agreement."

If you just

decide it doesn't work because of a term issue, you now have no rights afforded

to you under the Residential Tenancy Act. It certainly would seem to me like an

overkill. Where's the protection, then, for this class of tenants, given that

the act does not apply to them?

Hon. R.

Coleman: The protection is through the university and the institutions with

regards to the relations that they have. You should understand that the majority

of students are and were already exempt with regards to dormitory-style

residences at university. This is actually a very small portion of it. To have

the universities having to deal with two sets of rules and two sets of processes

with relationship to the tenancies that they have on their properties…. It's

just felt that this will work better for them. They feel they can discipline it

and make it work. If we find out down the road that it doesn't work, I guess we

would address it.

J. Kwan:

The minister says that from the institutions' point of view, they said it

doesn't work for them. Has the minister spoken with the students, from their

perspective, on what their thoughts are on this?

[1535]

Hon. R.

Coleman: We have had some input from students, yes, and they would actually

like to see it reversed — that residential tenancy be applied to every

dormitory relationship in the province. For a long period of time there have

been some contractual relationships that seemed to work within dormitories in

universities and within the relationship in the tenancies at universities.

That's why this definition is in there.

J. Kwan:

I would suggest that it is important when we're talking about the application of

law, and in this instance as we relate it to residential tenancy rights, that

that application be utilized for this class of tenants — namely, students. It

doesn't make sense to me that if the issue, from the institution's point of

view, is around terms of tenancy — the period in which a student can stay in

student housing — that the approach in addressing the issue is to deny

students who happen to be tenants living in student housing all of their rights

as tenants. It makes no sense to me at all. I think one could get around that by

simply providing a special provision around terms in these situations through

discussion with the institution or whatever the case may be.

Simply

saying that we have a concern from the institution on this side so therefore

none of the tenancy rights now apply to you is, I think, overkill. I think

students who happen to be tenants would be faced with twice the barriers of

regular tenants. It doesn't seem fair or appropriate to put in place where the

government is now saying that we can choose who has access to the application of

this particular law and who doesn't apply.

I have

particular problems with this section,

section 4(b).

Casting

that aside for a moment, I want to ask the minister a question around

section

4(g)(v). This

section appears to be clearly targeted at supportive or

assisted-living situations. If these facilities are exempted from this act, then

is it the case that…? Where would this class of seniors or people who live in

health facilities have their access rights? Would that be covered under the new

bill that was introduced by the Minister of State for Intermediate, Long Term

and Home Care? Is that the intent, so that's why they're excluded? Is it looked

at as a health issue, so therefore it's under a different act?

Hon. R.

Coleman: For the most part, these types of tenancies weren't included in the

previous act either.

[ Page 4268 ]

That is why there's some other legislation coming with regard to

definitions

of contractual relationships in things like assisted living. There's always the

argument about what is the rent, what is the service, what is the GST applicable

and what is the PST applicable. We just felt that within the Residential Tenancy

Act, this is something that doesn't apply to this particular form of

legislation. That's why we've done that within this act. It's basically been

that way by a lot of people's different

definitions over the years — the same

way.

The

Chair: Members, we're going to have a five-minute recess.

The House

recessed from 3:40 p.m. to 3:43 p.m.

[J.

Weisbeck in the chair.]

[1545]

J. Kwan:

This class of tenants, if you will, would be protected under a different bill,

as I understand it from the minister's response. Could the minister please

advise what description the minister has adopted in classifying health

facilities? I know in this

section of the act it says: "…health facility

that provides hospitality support services and personal health care…."

It's not very prescriptive in terms of what falls into the definition of health

facilities. I wonder if the minister could expand on this definition of health

facilities a little bit further than what is now in the act.

Hon. R.

Coleman: Excuse me; I have the same problem as the hon. member.

It's not

clear what form the assisted-living

definitions…or how it will be dealt with

in the future. That's why there's some consultation going on now with regards to

the definition of assisted living — whether it's going to require legislation,

standards, licensing, what form of consumer protection, etc.

What we do

know is that that is the consultation and work being done by the Ministry of

Health and the ministry responsible for housing, which is Community, Aboriginal

and Women's Services, who will be dealing with this portion of this form of

housing. It is not something we would include in a residential tenancy

relationship.

J. Kwan:

Supportive living or supportive housing is not included under the Residential

Tenancy Act, under this

section of the bill. Is that the only class of health

facilities, then, in the definition of this

section of the act that this would

apply to? Are there other health facilities to which this

section of the act

would also apply?

We now know

that supportive housing is excluded. That's being addressed and looked into by

the Minister of Health and the Minister of Community, Aboriginal and Women's

Services. Is there any other class of health services that this would include?

Hon. R.

Coleman: All of

section 4(g) — sub-subsections (

i) to (vi) — identifies

those that are not included in the act. That includes things like Community Care

Facility Act, Continuing Care Act, the Hospital Act, the Mental Health Act, a

housing-based health facility that provides hospitality services and personal

health care, and "that is made available in the course of providing

rehabilitative or therapeutic" services. That's the combination.

As the

member knows, there are probably a plethora of

definitions and titles that can

be given to those forms of housing. That's why those

definitions will be dealt

with in legislation with regards to that and the consultation process ongoing by

the members. It's not the intent that this act will be responsible for that type

of facility.

J. Kwan:

I'm just trying to determine from this

section of the act which other facilities

would not be included. I know that sub-subsections (

i) to (iv) indicate a

variety of health facilities that would be excluded, and it's spelled out

clearly in the act. But in sub-subsection (

v) it simply states: "…health

facility that provides hospitality support services and personal health

care." That, to me, is not necessarily clear for one to understand to which

health facilities this does apply.

The one

answer that I did get from the minister is that supportive housing, supportive

living or assisted living would not apply. Is that the only other class, then,

that would apply?

understand when the minister says sometimes people use different terminology to

describe different things; I understand that. The intent behind it in describing

what supportive or assisted living is…. One becomes very clear in terms of

what those provisions are for one to be eligible for supportive and assisted

living in the new guidelines. That's easy to define. You might not call it

supportive or assisted living. You can call it whatever else you want, but under

the qualifications for a person to fit into that category, it is clearly being

identified — same thing with those who are under the Mental Health Act, as an

example, continuing care, etc.

One becomes

clear. When you look at the conditions of those settings, you know what they

mean even though you may have a different word for it. The question then

becomes: is there any other class that we're missing, or does this encompass all

of it, under the current intent of this act from the minister?

Hon. R.

Coleman: I'll stay away from titles. I think that basically, under

subsection (g), this sets it out about as clearly as you possibly can, pending

any consultation on housing names or

definitions or what have you with regards

to…. When it says "in a housing-based health facility that provides

hospitality support services and personal health care," I think that's the

definition that we need to go back to rather than just a title.

[1550]

J. Kwan:

From the way it sounds, there are no other classes, then, which health

facilities would fall under

[ Page 4269 ]

with the exception of assisted living or supportive housing. The conditions

that apply to this category are clearly stipulated through the other two

ministries, so one knows even if someone else calls it a different name. Am I

right to understand that? I just want to know if we are missing any other groups

of tenants that may not be included or would be involved or have their rights

protected through some other act. I just want to clarify who is included and who

is not included.

Hon. R.

Coleman: Again, through to the member, I think it's as clear as we can get

it. This definition was provided to us with consultation with Health and with

regards to residential tenancy.

I think you

have to remember that the residential tenancy agreement is really aimed at a

consumer relationship between a landlord and a tenant in the provision to

housing and not for the provision of additional services, add-on services or

other facilities within that realm. The Residential Tenancy Act is covering the

people that are in a relationship where they rent an apartment, a condo, a

townhouse or a home from a landlord with regards to their relationship and how

that relationship should be managed.

J. Kwan:

I'm not sure. The minister keeps saying it is clear, but when I ask for just a

simple answer, it's just exhaustive. In other words, do we understand this

covers all the groups of tenants that would be excluded from this act under this

section? The minister actually hasn't said what the answer is. I suspect he's

not going to say any more than what he has already said, but it is unclear. It's

unacceptable — I have to say this, Mr. Chair — when the minister likes to

get up and say that this is meant to be in plain language. People are supposed

to read it and understand what it all means, but yet there's vague language

within the act that doesn't tell you very clearly who is included, who is

excluded and who is covered. You think that's a basic premise of plain language,

so you know whether or not this act applies to you. If not, where else would it

be covered? That's the purpose of this debate under committee stage: to get the

answers.

So far, I

must admit, Mr. Chair, I haven't got the answer from the minister. He likes to

say it's clear, but it isn't. It simply isn't. He says: "Oh well, too

bad." Maybe that's the attitude the minister would like to take: "Too

bad. Sorry for all of you out there who are concerned about whether or not this

act applies to you. If it's unclear to you, well, that's just too bad." Yet

somehow the minister likes to claim that he's bringing forward legislation in

plain language and that somehow when people read it, they'll understand very

clearly what it all means.

You know,

maybe it's just me, but it seems to me there's a bit of an attitudinal problem.

Maybe the minister's just going through this because it's pro forma, but maybe

it doesn't really mean anything at the end of the day. If the attitude is just

like, "Hey, if it's not clear to you, too bad," there's something

wrong with that.

Interjection.

J. Kwan:

It's not an issue about being nice or about being not nice. This is a serious

issue. Over a million people in British Columbia are renters, and they need to

be able to know what applies to them and what doesn't. Maybe this government

doesn't care and doesn't care to know because of attitudes like: "If you

don't get it, too bad. Let's just get on with it, move forward."

The

Minister of Community, Aboriginal and Women's Services is saying: "Let's

get on and not ask questions anymore." Maybe that's the attitude of this

government. Yet, you know what? A lot of people in British Columbia care about

this act. They need to know what this act means and how it impacts them. That's

what this debate is about.

I assume

we're not going to get an answer, any further clarification, from the minister,

because his attitude is: "Too bad. You don't need to know. If it's not

clear to you, that's just too bad."

[1555]

Section

4(

k) of this act is problematic as well. It's a brand-new subsection to the act.

It simply says "prescribed tenancy agreements, rental units or residential

property." Reading this together under

section 4….

Section 4 begins,

"This act does not apply to" subsections (

a) to (k). Under (

k) it

simply says "prescribed tenancy agreements, rental units or residential

property." Who is this supposed to apply to — anybody? Everybody, as long

as there's some sort of tenancy agreement that applies, some sort of rental

units that apply, some sort of residential property that applies? How is that

clear for the public, for them to know whether or not they are exempted from

this act or they have protection from this act? Subsection (

k) is a big,

wide-open net to say all kinds of people could be exempted. Why isn't it more

defined so that people know exactly who is covered and who is not covered?

Hon. R.

Coleman: Subsection (

k) basically gives us the ability to add to this list

if there are licences or something out there we're not aware of that shouldn't

be in this act and that we could add to this list of regulation. It really is

the ability for us to…. Just in case there's something in here that really

doesn't belong and isn't on the list in

section 4 and needs to be added, it's

basically enabling for regulation to deal with that. That is just something

that's put in to allow us to do that if it's necessary.

J. Kwan:

If the intent is to allow for the minister to add other classes of tenants to be

excluded from protection of the Residential Tenancy Act, instead of simply sort

of putting a broad statement out there that says the act could not apply to

prescribed tenancy agreements, rental units or residential properties, why

doesn't the minister put it through actually appropriate amendments in the House

so that people know who is being exempted as new classes come up or if the need

arises? We sit in the House every year; this happens every year. This now simply

allows for a potentially

[ Page 4270 ]

very broad use of exclusion of basic rights for tenants, and nobody knows who

they might be under this clause of the bill.

Hon. R.

Coleman: This is actually doing what's already in the existing act,

exempting a landlord or tenant or class of landlord or tenant from the provision

of this act, which is in

section 90(

c) of the previous act. Basically, it's in

that act for the same reason that it's in this act.

J. Kwan:

It's all very well and fine to say that it was in the previous act, but the

minister actually went through a process of consulting with the public

supposedly. He supposedly went through the process of wanting to clarify the act

to make it more clear. The previous act by no means was perfect. That's what

this exercise is about: actually addressing some of the concerns that surfaced

from the previous act and then making sure clarification is brought about and

then making sure rights…. One would hope residential tenancy rights are

applied more fairly and broadly for people who are involved, whether it be

tenants or landlords — and for a balanced approach to be taken.

It's simply

not a good enough answer to say: "Well, it was there before, so we just

left it." If it was a flaw in the previous act, it should be taken out. I

would say that it was a flaw in the previous act and that it should be taken

out. To that end, I have an amendment to make to amend section (4) to delete

subsection (k).

[Section 4 is amended by deleting the text highlighted by

strikethrough:

(

k) prescribed tenancy agreements, rental units or

residential property. ]

there are new classes the minister wants to add to this in terms of exemption

for residential tenancy support, bring the amendments forward in the House.

Interjection.

[1600]

J. Kwan:

Yes, deleting sub (k). That's the amendment I would like to move at this time.

Copies are being passed to the minister.

Amendment

negatived on division.

J. Kwan:

I just wanted to be clear and on the record that I'm not going to support

section 4. Most notably, the issue is around student housing. There's a large

class of people who would be exempted from access to this particular law, and

that is the right to have the protection of the Residential Tenancy Act. I don't

think the answers the minister has given so far are sufficient reasons to

exclude students from having access to the protection of the Residential Tenancy

Act. For that reason particularly, I'm going to vote against

section 4.

Also, as a

result of the subsection (

k) amendment having failed, the broad allowance for

exclusion of tenants in the future — we don't even know who they might be —

I think is very problematic. I don't think that government should take easily

the stance in actually excluding various citizens of British Columbia from

accessing fundamental, basic rights. One would think that residential tenancy

rights are one of those fundamental, basic things that people should have access

to.

Section 4

approved on division.

On

section

J. Kwan:

Section 5 is a positive change. We touched on this briefly, but I want to ask

the minister this question: how does the enforcement take place for

section 5?

Where does it apply?

I should

state very clearly, because

section 5 states: "This act cannot be

avoided." Under 5(1), "Landlords and tenants may not avoid or contract

out of this act or the regulations," and subsection (2): "Any attempt

to avoid or contract out of this Act or the regulations is of no effect."

This is a positive change in terms of amendments to the Residential Tenancy Act,

to disallow for contracting out of the application of this act. But how does one

go about enforcing it? That's the question to the minister.

Hon. R.

Coleman: First of all, this is so people can't decide they're going to go

outside this act and increase the damage deposit higher than what should be

allowed. It clearly states that. The enforcement side of that, if somebody

decides they're going to be outside the act, is the arbitration process.

J. Kwan:

Given the amendment earlier to, say, prospective tenants…. With the amendment

change, previous, former and existing tenants would have the residential tenancy

office to file their complaint to and have their issues and concerns addressed.

Is that the intent?

Section 5

approved.

On

section

[1605]

J. Kwan:

While it may appear that under this

section there are no substantive changes,

there is one word that is being changed under

section 6(3)(b). It is very

concerning in terms of the change in the one word.

Section 6 reads as follows:

"The rights, obligations and prohibitions established by or under this act

are enforceable between a landlord and tenant under a tenancy agreement."

Then

section 6(3) goes on to say a term is not enforceable under 6(3)(b), if

"the term is unconscionable."

The change

here is this. What used to be in the previous act is the term

"unreasonable." Now the term "unconscionable" is being used.

When I looked up the term unconscionable in the legal dictionary, it actually

provides for a more heightened, if you will, and narrow…in defining what is

reasonable versus what is unconscionable. Why would the minister change the

[ Page 4271 ]

word unreasonable to the word unconscionable? And what does unconscionable

mean in this context?

Hon. R.

Coleman: Basically, it raises the standard. First of all, we have to

understand there's going to be a standard-form tenancy agreement as determined

by regulation. Then there will be the ability for landlords and tenants to

negotiate other areas within their tenancy agreement, whether it be pets or

whatever the issue is for them. It is the same standard that is applied in other

consumer contracts that we deal with in government, and we feel that term is

applicable in this particular case.

J. Kwan:

Yes, there's no doubt for me that the word unconscionable implies a much

more narrow approach than the word unreasonable. In this instance it has and can

have huge ramifications for both the landlord and the tenant.

Take as an

example what is deemed to be unconscionable. I would assume that if the landlord

requires the tenants to provide sexual favours to them for them to continue to

have access to the rental accommodation, that is unconscionable. I would imagine

that. Yet in another situation if, let's say, on Sundays laundry facilities

would not be open for tenants' use, for whatever reason, I would assume that

might not fall into the category of unconscionable, but it would seem to me as a

tenant that it's unreasonable. Yet the definition of that with the new

terminology of unconscionable makes it, perhaps, much more narrow for one to

establish the case as to what is reasonable and what is not reasonable, and

what's conscionable and what's not conscionable. Again, tenants may well be

disadvantaged as a result of this narrower description of unconscionable versus

unreasonable.

Could the

minister advise then: in the case around someone who might be denied access to

the laundry facilities on a Sunday, is that unconscionable or is that

unreasonable?

Hon. R.

Coleman: First of all, let's make something clear. If somebody's out there

asking for sexual favours for a tenancy in the province of British Columbia, I

would expect that we're going to deal with it as a criminal matter, not just

through a residential tenancy agreement, to draw that parallel. That is

unconscionable, it's criminal, and it's unacceptable to anybody in any society.

We should be clear about that. To draw those comparisons, when we're dealing

with

an act that deals with a consumer relationship between a landlord and

tenant, is not appropriate in this context.

With

regards to laundry on a Sunday. If it's in the tenancy agreement that's agreed

to between a landlord and tenant, that's a reasonable situation, because the two

have agreed to it in a tenancy agreement. So it's obviously not unconscionable.

[1610]

J. Kwan:

Well, you know, it might shock the minister in cases where people are demanded

for sexual favours in a tenancy situation. It might shock the minister. It's

absolutely unacceptable; there's no doubt about that. It's absolutely criminal.

There's no doubt about it. I want to say that very clearly. But the reality is

also, particularly in my riding, that many people are put in the situation.

They're hugely compromised and abused by unconscionable and unreasonable

landlords. That's the reality of it.

I hear from

my constituents. There are lots of issues, and some of it is criminal —

absolutely. It's unacceptable that this kind of practice goes on, but it does.

People look for the broadest and widest ways in which they can address these

issues. Part of the issue is, of course, under the Residential Tenancy Act,

where these kinds of things happen, so you want to ensure there's allowance for

people to take recourse. That is the purpose of this debate here.

I'll give

another example — again, in my own riding I know this happens regularly —

where people have to actually perform a variety of services in order for them to

maintain their tenancy, whether it be housekeeping for the landlord's apartment

or buying alcoholic beverages downstairs at the pub — as a lot of people live

in these buildings where there are pubs, for example. Those, to me, quite

frankly, are unreasonable and unconscionable — those kinds of favours that are

demanded of tenants.

The reality

is that people are faced with these situations. When you're so very marginalized

and you have very few options and choices before you, people find it difficult

to cope, and often they are faced with the abuses of the landlord. That's the

reality of it. I know this happens, having been a residential tenancy advocate

prior to this time. I know it happens even though it may be illegal.

Recourse is

important. To heighten and narrow the provision for what tenancy terms are

unreasonable to the term "unconscionable," to make it even harder to

establish the tenant's case, I don't think is acceptable. It's not acceptable.

It's not within a reasonable rationale in the broader public's mind. One would

expect that terms that are put forward that are unreasonable should not be

allowed under a tenancy situation. It is reasonable, I would think, to expect

that you could do your laundry on a Sunday, as an example. You would think

that's a reasonable thing to ask for as a tenant, but if it's in the tenancy

agreement to say, "Well, you're not allowed to do laundry on a Sunday, even

though that may be your only day off," can you then establish that as

unconscionable? Can you establish that as unconscionable, and who gets to decide

what is unconscionable? What is the definition of unconscionable in the case of

tenancy disputes?

Hon. R.

Coleman: This particular piece of legislation puts in place by regulation a

standard-form tenancy agreement that's deemed to be in place if there isn't one

signed by a landlord and tenant. It is going to lay out the basic rules of a

relationship of a tenancy between a landlord and a tenant. I think that's an

important shift, because it actually identifies a relation-

[ Page 4272 ]

ship with much more clarity than there has been in the past.

[1615]

The second

thing is that the member talks about somebody cleaning someone's apartment or

whatever the case may be. I don't know in those situations whether it is part of

an agreement for tenancy, and that is a consideration for the reduction of the

cost of rent in a particular tenancy or whatever the case may be, so I don't

think I could comment on individual situations that the member wishes to pick up

on as unconscionable.

I think

that when you put the standard form out there — you have an agreement between

landlord and tenant, and those that you don't have an agreement between, you've

identified within that tenancy agreement what the standard relationship should

be — you actually protect landlords and tenants, in particular, in a much

better way than they have been in the past — whether they be in a situation

like the member describes in her riding or whether they be in what we would

refer to as an illegal suite in the province. They will also be protected by

having a standard form of tenancy agreement. We will develop that tenancy

agreement in consultation, as we move the regulations forward, to make sure that

it is clear on what that relationship is between landlord and tenant.

J. Kwan:

Given that the act is before us, the substantive change here under

section 6 is

to replace the word "unreasonable" with the word

"unconscionable." The minister has yet to describe what unconscionable

is. What he's said so far is that it's narrower in its application than what was

previously in place — the word "unreasonable" — so we know that

it's going to be stricter in terms of application to establish one's case. It's

going to be harder for tenants to establish their cases when the landlord is

treating them unreasonably, because the test now is not just unreasonableness;

it's unconscionableness.

Could the

minister please define "unconscionable" for this House? Give me an

example — any example — of what is deemed to be unconscionable under a

residential tenancy setting. What is the enforcement provision? Who gets to

decide what is unconscionable, given that the act doesn't describe what is

unconscionable?

Hon. R.

Coleman: I'm comfortable with this being in the act, frankly, because of the

common-law applications that have been applied to through the courts. Also, to

me, unconscionable is when no two parties would reasonably enter into something

within an agreement that puts one party significantly at risk, I guess you would

say. How you would define that in a relationship between a landlord and tenant

is that you have a tenancy agreement. The tenancy agreement is agreed to by both

parties. If there is something outside of that, that's why we have an

arbitration system and arbitrators.

J. Kwan:

What are the common-law cases that establish clearly what unconscionable means?

Hon. R.

Coleman: Just so that the member doesn't misunderstand, it's a term that's

been around for a long time. That's what I meant by that comment. Frankly, the

tightening-up of the relationship in a standard-form tenancy agreement, so

people understand what the relationship is between landlord and tenant, is

probably one of the most significant shifts of this legislation, because it's

very, very important for both parties.

J. Kwan:

I spoke with some of the representatives on behalf of tenants just today. They

have a lot of concern about this. The minister likes to say that people are

happy with this and that it's going to be good for both parties — not so.

Under

section 6, let's be clear. Here's what

section 6 deals with: "The rights,

obligations and prohibitions established by or under this Act are enforceable

between a landlord and tenant under a tenancy agreement." Under subsection

(3): "A term of a tenancy agreement is not enforceable if…the term is

unconscionable."

That's what

we're talking about: if the term is unconscionable, then it is not applicable.

Interjection.

J. Kwan:

Let's be clear. The minister says to read subsection (a) — sure. "The

term is inconsistent with this act or the regulations."

There is

one set which you can apply, in terms of what is enforceable and what is not

enforceable. If it is not consistent with the act or the regulations, then it is

not enforceable. That's one thing.

[1620]

Then the

second test that the minister has put forward is the term

"unconscionable." It used to read "unreasonable." A

reasonable test is a legal test. It is a legal test in many circumstances.

There's ample case law to establish what is reasonable, and courts have defined

that. Unconscionable, on the other hand, is a different test and is not a legal

term. It is not a legal term, as far as I could see. The definition is much more

heightened for the tenant and the landlord to establish what is unconscionable.

It has, in my view, a moral overtone to it. Who gets to play God and define what

is conscionable and what's not conscionable?

I thought

that the "reasonable man" test should be the test that's applied. At

least as far as I can remember — I am not a lawyer by any stretch of the

imagination, but I have gone to university and taken some of the courses

relative to legalities and issues — the reasonable test is a critical test

that is always, always being applied in the courts. In the case of the

Residential Tenancy Act, that was also the term that had always been used. Now

all of a sudden that's changed. Somehow a thing cannot be enforced if — if —

it is unconscionable.

You know,

the heightening of this approach, I think, limits access to protection of rights

for tenants and potentially for the landlords as well, although it is

[ Page 4273 ]

a somewhat unequal balance of power, if you will, between landlords and

tenants. Landlords tend to have greater power and control over things, and the

tenants tend not to, because they're dependent on the tenants' approval to get

access to their accommodation.

This

section of the act with this change in this term is extremely problematic in my

view, so I'd like to move an amendment to

section 6(3) to, first, delete the

word "unconscionable" and replace it with "unreasonable." I

think the test that should apply should be a reasonableness test and not this

heightened, more narrow, restrictive test that this minister is putting forward.

Section

6(3) would be amended as follows:

[Section 6 (3) is amended by deleting the

text highlighted by strikethrough and adding the text highlighted by

underline:

(3) A term of a tenancy agreement is not enforceable if

(

a) the term is inconsistent with this Act or the

regulations,

(

b) the term is unconscionable

unreasonable , or]

On the

amendment.

Hon. R.

Coleman: I'm speaking against the amendment. The definition in

section 6(3),

I think, covers it. It says: "A term of a tenancy agreement is not

enforceable if (

a) the term is inconsistent with this Act or the regulations,

(

b) the term is unconscionable, or (

c) the term is not expressed in a manner

that clearly communicates the rights and obligations under it."

That

actually raises a landlord's communication with a tenant to a higher standard

than it was in the past, and I think this

section more than aptly covers the

concerns of the member.

J. Kwan:

With all due respect, I disagree with the minister. The minister acknowledged at

the outset that he is actually putting forward the provision of

unconscionableness to make the issue a lot narrower in terms of enforceability

and what is deemed to be not enforceable. The intent here in this act is very

clear — that is, to make it more strict and harder to apply under

section 6(3)

of the act, for a tenancy agreement to be not enforceable. When a tenancy

agreement is not enforceable, one should apply the test of reasonableness, not

unconscionableness. To make such strict and narrow restrictions, to actually

overrule the tenancy agreement, places extreme hardship on particularly

vulnerable tenants, I would say. Marginalized individuals, people who are

desperate for housing, may well be subject to unreasonable means in application

of tenancy agreements.

[1625]

I would

even go as far as to argue that the previously passed definition of the

requirement for providing postdated cheques as a condition, if a landlord

chooses to put that in there, for tenancy is unreasonable. I think it is

unreasonable to say to people that they must provide for postdated cheques, and

if they don't, they can be turned down for this rental accommodation. To me,

that's unreasonable. But is it unconscionable? I suppose that's the debate.

That's the

debate, and it's not clear from this act whether or not that would be deemed to

be unconscionable. To me, it is unreasonable. If a person brought that to the

residential tenancy branch for dispute, a person would actually have a chance to

win the case to establish that. But here, with a narrower, stricter application

of what is enforceable and what is not enforceable, the minister is making it

very hard for tenants, especially those who are marginalized and who are in

great need of affordable housing.

MacPhail: On the amendment, my question to the Solicitor General is: will

there have to be a whole new body of law built up now around the term

"unconscionable"?

Hon. R.

Coleman: No, we don't believe that will be the case. This term has been used

in many consumer relationships. Frankly, we think we cover it under the

section

quite clearly, and we're quite comfortable with it.

MacPhail: I confess I have just come to this debate. I was following it on

the TV, but I missed a

section of it. I was questioning my colleague on this

word. It's a brand-new term to me in terms of a legal context or legislation.

I've never seen it before, so if we're not starting from scratch, perhaps the

minister could use this opportunity to advise tenants and landlords of where

they could look in consumer relations and consumer law, or in the law, to find

out what this word means in a legal context. Perhaps we could have that advice.

Hon. R.

Coleman: I guess we're debating the amendment, and I don't know what the

process is here with regard to the amendment. Obviously, I said I don't support

the amendment, but we will create a policy guideline and a fact sheet before the

legislation comes into force, as we develop the regulations, so people have a

clear understanding of the definition.

MacPhail: I know my colleague's amendment will be defeated. But I think the

Solicitor General's answer goes to the point raised by my colleague, which is

that there is nothing anyone can turn to except a policy, of which we know

nothing to date, that will now be developed by the Solicitor General.

The reason

why I think this is of particular concern is because, once again, British

Columbia is breaking new ground in terms of the application of law. I expect

that this breaking of new ground will be controversial, and I don't think it

will in any way assist in the streamlining of residential tenancy issues. We'll

mark this down as maybe an unintended consequence, but I expect this will bring

trouble to the waters of residential tenancy, because nobody knows what it means

on either side.

Amendment

negatived on division.

[ Page 4274 ]

[1630]

J. Kwan:

Let me try it another way. The minister says: "Don't worry. Unconscionable

would be clearly defined." We already know that in many cases, unreasonable

is defined by law, so I want to make this suggestion. At the minimum, I think we

should add in the word "unreasonable." If the minister wants to apply

the word "unconscionable" as one means of the test for enforcement,

then I think we should also add in what is clearly established, and that is to

say what is unreasonable so that a tenancy agreement ought not be enforced.

I have a

second amendment. The amendment should read as follows.

[Section 6 (3) is amended by adding the text highlighted by

underline:

(3) A term of a tenancy agreement is not enforceable if

(

a) the term is inconsistent with this Act or the

regulations,

(

b) the term is unconscionable or unreasonable , or]

Then I

think that tenants and landlords should have a right to know, as we're debating

this bill, what some of the applications would be. Part of that application

would include a test of unreasonableness. I've tabled and I move my amendment to

section 6(3).

Amendment

negatived on division.

On the main

motion.

J. Kwan:

The opposition will be voting against

section 6. I think it is unconscionable of

the government to put in such a test of unconscionableness to rule that tenancy

agreements should not be enforceable. It's really quite stunning when the

government says they've brought in legislation that provides for a balance in

terms of rights and protections for tenants and landlords. What we've seen so

far is that the tests and changes the minister has brought about have been ones

that, in my view, prevent access to the application of the law. It has

heightened and narrowed the tests that should be applied for the application of

the law, I think, to the detriment of both the landlord and the tenant. To that

end, the opposition will not be supporting

section 6 of this bill.

Section

6 approved on division.

Sections 7

and 8 inclusive approved.

On

section

J. Kwan:

Section 9(4) reads that "the director may do one or more of the following:

(

a) provide information to the landlords and tenants about their rights and

obligations under this act; (

b) help landlords and tenants resolve any dispute

that can be or has been referred to arbitration; (

c) publish, or otherwise make

available to the public, arbitration decisions or summaries of them."

Is the

intention of the act to make sure that information is shared and provided by the

landlords to the tenants?

Hon. R.

Coleman: This is the same provision that exists in the present act. The

intention would be that the director would continue in the process they're

employing now. The director has from time to time published a binder of

decisions, as I understand it. The intent is so people will understand what

decisions are taking place. We would have that process continue to some degree.

[1635]

J. Kwan:

I understand that. And I know that this government is fond of saying:

"Well, it says that in the previous bill, so why bother changing it?"

The whole purpose of why this bill is before us is that it's supposed to

advance, in legislation, changes that would be positive in terms of providing a

balance to the application of law and the enforceability of law, in this case

the Residential Tenancy Act. It's not a very good excuse to say, "We've

gone out and done all this consultation, and we're here to make changes to make

it more positive," and so on and so forth, and then for the minister to

simply refer back and say: "Oh well, it's the same as before." If

that's the case, why bother bringing forward a bill that, really, basically

doesn't advance changes in a positive way? It doesn't make sense to me. That's

not an answer at all. It's not an acceptable answer for the minister to provide.

The issue I

want to raise here is this. The concern I have is that if we don't change the

language to be more direct in terms of a requirement for the director to provide

information to landlords and tenants about their rights and obligations under

this act, then you run the risk of people not knowing how to apply the act. It

is important that people do know and are educated and receive this information

so that the law will be followed as closely as possible, if not in its entirety

— at least people are informed. Education is key, and the provision of

information is key. Having been an advocate, I know what that is like. Access to

information is access to rights — what rights should be afforded to you and

how you make sure people do not abuse the process or discriminate against you.

You have to have the information in order to know, and if you don't have the

information, you cannot know.

It would

seem to me that for the purposes of advancing this act and the purposes of

protection and the application of rights in the residential tenancy provisions,

the director must provide information to landlords and tenants about their

rights and obligations under this act. The director must help landlords and

tenants resolve disputes that can be and have been referred to arbitration and

publish or otherwise make available to the public arbitration decisions or

summaries of them.

All of this

is important by way of information, particularly on the last point, where the

minister says, "Well, we'll establish in regulation what unconscionable

means," when it's a very new term. In fact, it's a

[ Page 4275 ]

new term in the residential tenancy arena, and yet there's no requirement for

arbitration decisions or summaries of them to be made public so that people know

what the case law has been and how it's been set. Why wouldn't the minister want

to go further than just to say: "Well, you may do it, or you may not do

it"? Why wouldn't the minister want to go further, to say, "Well, you

must do it," in an effort to ensure that the application of this act is

fulfilled so people do have the information available to them and they're

educated about it so, therefore, they can apply it appropriately?

[1640]

Hon. R.

Coleman: There are over 20,000 arbitrations in the province of B.C. every

year. When we dealt with some of these issues in and around the publication

issues, the privacy issues were brought up by the privacy commissioner with

regards to what would have to be deleted and not deleted. The entire

administrative bureaucracy that would have to be built around that, rather than

just having selected arbitrations out there so that people could see what in

certain circumstances was the decision, was felt to be the more reasonable

approach. We think we can accomplish that quite nicely in the management of the

branch, and we don't think it's necessary to make it that every arbitration

should be or shall be published.

J. Kwan:

It's not just the issues around arbitration decisions and what is made public. I

would argue to the contrary. I understand the issue around privacy, and you can

meet the issue of privacy and the test of privacy by deleting names, and so on

and so forth, for the protection of the individual in the particular

arbitration, whether it be the landlord or the tenant. Those things could be

dealt with by sitting down with the privacy commissioner, seeking his advice and

then acting accordingly. That's it.

The issue

is this: sharing information, educating the public, so that the landlords and

the tenants know what their rights are and what their obligations are under this

act, making sure that the landlords and the tenants work towards resolving

disputes that can be or have been referred to arbitration. I think it is

important to make sure that arbitration decisions, at least summaries of them,

are actually made public so that people know what cases have come before the

arbitrator and whether or not they have won or lost, on what basis, what the

arguments are and what the rationales are for the case to be won or lost. It's

valuable information for landlords and tenants alike.

If the

interest is to make sure that people understand how to apply the law and what

their obligations are, then one would think that the government would go a step

further than saying, "You may use this information and educate the

public," or then again, "may not," and say: "This must be

done in the interest of ensuring that people know what their rights are."

It simply makes sense to go a step further.

The other

concern I have, of course, is that in the environment people are subjected to

today, sometimes accessing information is particularly difficult because of

cutbacks. We know residential tenancy offices have been shut down — one in the

lower mainland, one in Victoria. These are issues of concern for the public in

terms of access to a place where they can file a complaint. That access is

already diminished. If we don't work hard to get the information out to the

public, how can we then expect people to know what their obligations are?

Doesn't government take a responsibility in that as well — to ensure that the

public actually knows what their rights and obligations are — if you think

that this is a priority?

This

impacts, as I say, over a million people in British Columbia. Government should

take more of a progressive, proactive approach in providing information. It

doesn't make sense to me.

I'm going

to move an amendment to

section 9(4) of the act, to replace the word

"may" with the word "must." So it reads as follows:

[Section 9 (4) is amended by deleting the text highlighted

by strikethrough and adding the text highlighted by underline:

(4) The director

may must do one or more of the following:

(

a) provide information to landlords

and tenants about their rights and obligations under this Act;

(

b) help landlords and tenants resolve any dispute that can

be or has been referred to arbitration;

(

c) publish, or otherwise make available to the public,

arbitration decisions or summaries of them.]

I move this

amendment standing in my name. I think you've all got copies — and for a copy

to be passed on to the minister….

[1645]

Amendment

negatived on division.

Sections 9

and 10 approved.

section

J. Kwan:

Section 11 deals with the director and the staff who must not be compelled in

civil proceedings. Here, interestingly, the word is "must " as opposed

to "may." My question and concern to the minister is this: does this

section then allow for evidence or documents held by the residential tenancy

office…? Would that information not be made available, for example, for

judicial reviews?

Hon. R.

Coleman: It's not the intention to change what is made available for

judicial review with regards to this section. In situations of civil

proceedings, particularly in family relations where something has taken place

with regards to conversation or what have you in an arbitration and an

arbitrator is there between two spouses, for instance, or along those lines,

sometimes we do get to where they are summonsed to come to civil proceedings. We

get those quashed by going through basically what is an expensive court process.

This allows us to take care of that without having to go through that process.

[H.

Long in the chair.]

J. Kwan:

If the intent is not to exclude judicial review from accessing the information,

would that then

[ Page 4276 ]

be spelled out in the regulation? Where would it state that clearly? In this

section of the act it doesn't say that clearly. It simply says under civil

proceedings "…must not be compelled in civil proceedings arising out of a

dispute or an arbitration under this Act."

Hon. R.

Coleman: It's not the intention for staff to change what is current

practice; it's made available for judicial review. This deals with other civil

proceedings. Frankly, we're not going to change the policy, what we presently

do.

J. Kwan:

Yes, the minister says it wouldn't change the policy in terms of what we

currently do. The question is: where would it be spelled out clearly that

judicial review would not be counted as civil proceedings in this situation?

Where would it say that? Would it be by regulation? How would one have the

reassurance that that is in fact the case, other than the minister's word?

[1650]

Hon. R.

Coleman: The ministry reviews with counsel when these things happen as to

what should or should not be released, and that practice will continue. The

intent is that this type of definition is part of the admin justice project,

which is ongoing in the Attorney General's ministry. It is basically so that we

can separate what would be made available under a normal proceeding, which is

with counsel, versus whether we're dealing with civil proceedings that we don't

think our arbitrator should be drawn into.

J. Kwan:

Why wouldn't the minister put this in regulation so that it's completely

clear?

Hon. R.

Coleman: We just don't think it's necessary. It's been the practice, and

we'll continue the practice.

J. Kwan:

Well, it remains to be seen. As a member of the opposition, I certainly will

be observing this very closely. I would imagine that those who advocate for

tenants will be watching this very carefully too, and I hope it is the case that

judicial review would be exempted from this provision so that information could

be shared from the residential tenancy office if a matter arises to a judicial

review.

Sections

11 and 12 approved.

section

J. Kwan:

Under

section 13(2)(

a) it makes reference to the words "the standard

terms." Could the minister please explain what this means? It's not clear

in terms of what this means — the standard terms.

Hon. R.

Coleman: The standard terms are what's deemed to be part of every tenancy

agreement. Right now it's laid out in the tenancy agreement regulations that

exist in the existing act and existing operation. We will be reviewing those

standard terms as we go through the development of regulation and putting a

standard set of terms and standar