1984 Legislative Session: 2nd Session, 33rd 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, MAY 7, 1984

Afternoon Sitting

[ Page

4569 ]

CONTENTS

Routine Proceedings

Hospitals Amalgamation Act (Bill 26). Hon. Mr. Nielsen

Introduction and first reading –– 4569

Oral Questions

Canada Health Act. Mrs. Dailly –– 4569

Emergency aid for village of Ware. Mr. Passarell –– 4570

Late payments from Ministry of Human Resources. Mr. Blencoe –– 4571

Young Offenders (British Columbia) Act (Bill 22). Hon. Mr. Smith

Introduction and first reading –– 4571

Human Rights Act (Bill 11). Committee stage. (Hon. Mr. McClelland)

section 5 –– 4571

Mr. Blencoe

section 6 –– 4573

Mr. Gabelmann

Mr. Rose

Ms. Sanford

section 7 –– 4576

Mr. Gabelmann

Mrs. Wallace

section 8 –– 4578

Mr. Gabelmann

section 9 –– 4580

Mr. Gabelmann

section 10 –– 4580

Mr. Gabelmann

Mr. Rose

Section 11 –– 4582

Mr. Gabelmann

section 13 –– 4583

Mr. Gabelmann

section 16 –– 4583

Mr. Gabelmann

section 17 –– 4584

Mr. Gabelmann

section 18 –– 4585

Mr. Gabelmann

Home Owner Grant Amendment Act (No. 2), 1984 (Bill 24). Second reading

Hon. Mr. Ritchie –– 4586

Mr. Blencoe –– 4586

Mr. Segarty –– 4587

Mr. Ree –– 4587

Mr. Mitchell –– 4587

Hon. Mr. Ritchie –– 4587

Hydro and Power Authority (Land Transfer) Act, 1984 (Bill 25). Second reading

Hon. Mr. Rogers –– 4588

Mr. Lauk –– 4588

Mrs. Wallace –– 4588

Hon. Mr. Rogers –– 4589

Skagit Environmental Enhancement Act (Bill 12). Second reading

Hon. Mr. Brummet –– 4589

Mrs. Wallace –– 4589

Hon. Mr. Rogers –– 4590

Hon. Mr. Brummet –– 4590

Miscellaneous Statutes Amendment Act (No. 1), 1984 (Bill 21). Committee stage

Section 1 — 4591

Mr. Lockstead

section 12 –– 4591

Mr. Lockstead

section 14 –– 4592

Mr. Cocke

section 20 –– 4592

Mrs. Dailly

Ms. Brown

section 24 –– 4593

Ms. Sanford

section 26 –– 4594

Mr. Passarell

Mr. Nicolson

section 30 — 4594

Mr. Passarell

MONDAY, MAY 7, 1984

The House met at 2:03 p.m.

Prayers.

MR. VEITCH: Seated in the members' gallery this afternoon is

a very good friend and neighbour of mine, Dr. Egon Nikolai. Dr. Nikolai

is an alderman in the municipality of Burnaby, and he is also the past

president of the College of Dental Surgeons of British Columbia.

Joining him shortly will be his wife, Fern Nikolai. Fern is the

director of protocol for the B.C. Summer Games. I would ask the House

to bid them welcome.

MR. BLENCOE: In the gallery or in the precincts today we have

two groups of young people visiting the Legislature. The first is from

the Boys' and Girls' Clubs of Greater Victoria, and the second group is

a group of pre-employment students from Victoria Senior Secondary

School. I would ask the House to wish them welcome today.

HON. MR. BRUMMET: In the gallery today is a long-time

personal friend and a former colleague from the teaching profession in

Fort St. John. He's now from Duncan. I would like the House to welcome

Mr. David Holmes.

MR. MOWAT: I have two introductions today. My colleague for

Boundary-Similkameen (Hon. Mr. Hewitt) and my colleague for Okanagan

South (Hon. Mr. Bennett) ask the members to welcome Mr. and Mrs. Ian

McKay from Osoyoos. Mr. Ian Mckay is the governor for Gyro in District

I also have the pleasure of introducing to the House Dr. John

Silver, who is the vice-president of the College of Dental Surgeons.

They're holding their annual conference and annual meeting in Victoria

this week. I'd ask the House to join me in welcoming these people.

Introduction of Bills

HOSPITALS AMALGAMATION ACT

Hon. Mr. Nielsen presented a message from His Honour the Lieutenant-Governor:

a bill intituled Hospitals Amalgamation Act.

Bill 26 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.

Oral Questions

CANADA HEALTH ACT

MRS. DAILLY: The Minister of Health has referred to the

Canada Health Act as "stupid." Could the minister tell the House what

is stupid about

an act which reinforces the basic principles of

medicare and which passed the House of Commons by a vote of 213 to 0?

HON. MR. NIELSEN: Well, Mr. Speaker, I won't take all of question

period to answer the member's question, but since the member is being selective

in her support for it, I may also mention that the act has been opposed by all

the provinces of Canada, and it is the provinces who have the responsibility

of administering and providing health care in the country.

I think the member is quoting me on a good day when I referred to

the bill as being stupid. I have had more descriptive phrases which I

think more accurately describe the impact of the Canada Health Act on

the country.

Mr. Speaker, basically the act, if it comes into force as written,

will not provide improved health care to the citizens of Canada, but it

will cost a great deal more to provide health care services. Its major

flaw, among many — one of its major flaws, at least — is that it does

not take into consideration the regional requirements of health care in

Canada, and once again I emphasize that the provinces have had the

experience with respect to delivery of health care. The federal

government has completely ignored that and apparently are going about a

political exercise rather than improving health care services to our

people.

MRS. DAILLY: Supplementary to the minister. My basic question

to the minister, which he chose not to answer.... I'll ask it again,

and I'll reword it; perhaps that will make it clearer. Does the

minister not accept the fact that the Canada Health Act was primarily

brought in to reinforce and ensure that the basic principles of

medicare will prevail in our country?

HON. MR. NIELSEN: No.

MRS. DAILLY: Would the minister explain to the House what there is about the act which did not reinforce the principles of medicare?

HON. MR. NIELSEN: Mr. Speaker, the principles of medicare

were not under attack, except perhaps in the opinion of some who felt

that certain aspects of provincial administration were inconsistent

with their

interpretation of medicare. The questions apparently most

often on the mind of the federal minister were extra billing and user

fees. Every province, I believe, in conferences I attended, told the

federal minister when she would listen — which was very rarely — that

they would be prepared to sit down to discuss these aspects that all

indicated that the unilateral method by which the federal government

chose to interfere was not going to resolve the problem. Mr. Speaker, I

can elaborate. Despite the introduction and passage of the Canada

Health Act — I believe it's still awaiting royal assent — as far as I

know, the provinces have told the federal minister that they do not

intend to change the method by which they now provide health care in

the provinces, including the provinces which permit extra billing and

those which have user fees. So nothing has been gained, except it will

cost more, with much more bureaucracy. The former Health minister of

Quebec may have been close to the truth when he said the purpose of the

Canada Health Act is to employ about 6,000 bureaucrats who didn't have

a job to do after the financing formula was changed. She may be quite

right.

MRS. DAILLY: I have a further supplementary to the minister.

Is it not true that all federal parties, including the federal

Conservatives, supported this act?

HON. MR. NIELSEN: Mr. Speaker, the member would know that that is correct: all three parties in the federal House

[ Page 4570 ]

supported the act in principle and, I believe,

voted for it when it went through. Because there is a federal election

in the offing, I was asked by representatives in Ottawa, what was their

choice?

SOME HON. MEMBERS: Oh, oh!

HON. MR. NIELSEN: All the members I spoke with.

MRS. DAILLY: Well, it's interesting that the minister is

making his own references to what is meant and has been stated by the

leaders of the federal parties, including the leader of the

Conservative Party. I think they would be most interested to know that

the Minister of Health in B.C. is saying to this House that he does not

really believe that the federal minister is being straight with the

people of Canada when he says he's against this act. That is really

what the minister has just said to the House. Is that correct?

HON. MR. NIELSEN: Mr. Speaker, in that the federal Minister

of Health refuses to discuss the issue with her provincial

counterparts, I think it's somewhat irrelevant what her opinion may be,

since it's such a secret. The federal minister simply will not discuss

the Canada Health Act with the provincial Ministers of Health —

although there was a death-bed change when we were in Ottawa to discuss

this with the Senate committee. A message came that the minister would

be pleased to meet "at some time." Prior to that, it was suggested that

a meeting could be held sometime next year.

The federal minister may have all the reasons in the world for

introducing the Canada Health Act. I don't know anyone who has

questioned her integrity. What has been questioned is the need for the

new act, the reasons behind it and whether it will be effective. As far

as I know, every province and territory in Canada has asked the federal

minister not to bring the act in. Every province, as far as I know, has

reasons to ask that it not be enacted as law. I think it is certainly

the consensus of the provincial Ministers of Health that the Canada

Health Act will not improve health care in Canada. It will cost a great

deal more. It will require a tremendous amount of increased

bureaucracy. In my dealings with other ministers, they question the

real motive behind the act; what they suggest that might be is for them

to say.

MRS. DAILLY: We just have more generalities from the

minister. I realize this is not the forum to debate those statements;

maybe we will at a future time.

My next question to the minister is this. The minister, in stating

that he's going to continue to collect health user fees, in essence is

going to be breaking the law of Canada. Why?

HON. MR. NIELSEN: There is no compulsion on the part of any

province to discontinue collecting user fees. It is not contrary to the

Canada Health Act, even when it becomes law.

MRS. DAILLY: The whole essence of the Canada Health Act was

to discourage the provinces from enforcing user fees on their citizens.

I think the minister would agree with that. So I ask him again: if that

is the purpose of the act, why is he setting such a bad example for

municipalities and school boards in this province in not going along

with the law of the federal government? I ask the minister: if his own

hospital board or the school boards or the municipalities did the same

thing, would he accept it?

[2:15]

HON. MR. NIELSEN: It is the intent of the province and the

government of British Columbia to obey federal statutes. The Canada

Health Act does not require a province to give up extra billing or to

give up user fees. The Canada Health Act simply says that should you do

that, the federal government may deduct from their transfer payments to

your province a like amount of money. It doesn't say you can't. The

reason given to us in Ottawa was that the federal government recognized

that constitutionally that's a provincial responsibility and provincial

jurisdiction. The word we were given by the people in Ottawa was that

they cannot impose upon us those conditions. But their lawyers have

told them they can deduct a similar amount of money from the transfer

payments, which would mean that the federal government would say to a

province which may be collecting fees or allowing extra billing, or a

myriad other possibilities: "That amount of money will be calculated,

identified and deducted from your transfer payment. However, if you

fall in line within the period of three years, you can have the money

back." But it does not prohibit the province from charging user fees,

nor does it prohibit a province from permitting medical doctors to

extra-bill. It doesn't prohibit it; it simply penalizes it.

MRS. DAILLY: A final supplementary. In other words, though,

you are still breaking the spirit of that law. May I ask this final

question to the minister: is it true, then, because of the Socred

government's obsession with imposing user fees on the people of British

Columbia, that not only are you going to be not following the law but

you are going to charge extra taxes to the people of British Columbia

to pay for the user fees?

HON. MR. NIELSEN: Let me make it very clear that despite the

style and manner that the member for Burnaby North may be using, the

province of British Columbia is not breaking a federal statute, nor

does it intend to break a federal statute. We shall comply with the

law. We will be able to and shall continue to provide the citizens of

British Columbia with a first-class health care system. We will find

ways of financing it. We will continue in our efforts to develop the

most cost-efficient program we possibly can without reducing the

services which are offered to our citizens. I want it very clear that

we are not going to break the law. We think the law is silly, but we do

not intend to break it, nor would I expect municipalities, school

districts or citizens of British Columbia to break the law of the

province or the country.

EMERGENCY AID FOR VILLAGE OF WARE

MR. PASSARELL: A question to the Attorney-General. This

weekend there was reported a serious incidence of famine and disease

among the native people of Ware in Northern British Columbia. What

steps has the Attorney-General taken to secure emergency aid for the

people of the village of Ware?

HON. MR. SMITH: I think, as the member knows, the province is

not charged with responsibility of that kind in relation to the native

people or their reserves. That is a federal responsibility. But having

said that, I will be very pleased to

[ Page 4571 ]

look into the report — which I saw also in the

press on the weekend — and get back to him on it. It is the

responsibility of the federal government — constitutionally, in any

event — for the conditions that have taken place over many years on the

reserves of this country, and for the appalling conditions which we

would hope would be improved with the advancement of self-government.

And I mean real self-government; I don't mean setting up lovely little

tinselly constitutional models. The real inauguration of

self-government in many of these native communities, as well as

partnerships in industrial undertakings and commercial ventures, will

improve the lot of the native people, which is an objective we share. I

don't know the circumstances about Ware. I will look into them and make

a report.

MR. PASSARELL: It's fine to talk about self-government. The

fact remains that there are people who are starving. Are you going to

allow jurisdictional disputes and other administrative details to stand

in the way of people who desperately need food and medical supplies

this week?

LATE PAYMENTS FROM

MINISTRY OF HUMAN RESOURCES

MR. BLENCOE: I have a question for the Minister of Human Resources,

but as she's not here I'll ask her alternate, who I believe is the Provincial

Secretary. It has come to our attention that the Ministry of Human Resources

has not issued many payments for all sorts of statutory services. Will he explain

why a large number of payments are up to six weeks late from the Ministry of

Human Resources?

HON. MR. CHABOT: In the absence of the Minister of Human

Resources, I'll be glad to take that question as notice and bring it to

the attention of the minister at the very earliest opportunity.

MR. BLENCOE: I've been advised that several day-care centres,

particularly one or two in this area, have not received cheques of

$6,000. They're having to borrow money and pay interest. Will the

minister give a personal assurance today that these cheques will be

prepared and delivered forthwith?

HON. MR. CHABOT: Mr. Speaker, I'm sure you recognize that the

question is out of order. The main question was taken as notice, and

therefore the second question really isn't relevant and shouldn't have

been allowed to be asked.

Introduction of Bills

YOUNG OFFENDERS (BRITISH COLUMBIA) ACT

Hon. Mr. Smith presented a message from His Honour the Lieutenant-Governor:

a bill intituled Young Offenders (British Columbia) Act.

Bill 22 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.

Orders of the Day

HON. MR. NIELSEN: Mr. Speaker, I ask leave to move to public bills and orders.

Leave granted.

HON. MR. NIELSEN: Committee on Bill 11, Mr. Speaker.

HUMAN RIGHTS ACT

(continued)

The House in committee on Bill 11; Mr. Strachan in the chair.

section 5.

MR. BLENCOE: I want to propose an amendment to this section.

I will start off by reading the actual wording of the amendment and

give the background and describe the rationale behind it. I'd like to

move an amendment to

section 5 by deleting

section 5(

l) and

substituting the following:

"

(1) No person shall (

a) deny to a person or class of

persons the right to occupy as a tenant space that is in any way

represented as being available for occupancy by a tenant, or (

b) discriminate against a person or class of persons with respect to a

term or condition of the tenancy of the space, unless reasonable cause

exists for the denial or discrimination.

"

(2) For the purposes of subsection (1) the race,

religion, colour, ancestry, place of origin, sex, marital status,

physical or mental condition, sexual orientation, political belief,

family composition, source of income or language normally spoken shall

not constitute reasonable cause."

That is my amendment that I put before you on Friday, and I believe the minister has received a copy of it.

On the amendment.

MR. BLENCOE: I put this forward basically as an adjunct to

the Residential Tenancy Act. There was a belief that Bill 11 and Bill

19 were a sort of package in terms of the issue of tenancy, purporting

to protect tenancy and tenants' rights and eliminate any kind of

discrimination. It's our position that Bill 11 is not sufficient in

terms of ensuring that certain tenants are given adequate or sufficient

protection. As I stated in hours of discussion on Bill 19, it's not

there either. This bill purports to prohibit discrimination in tenancy

premises, but in our estimation there are glaring omissions from the

list of protections in this section. One has to do with age, another

has to do with political belief, and one has to do with sexual

preference.

The political belief is indeed a very important one. It's one that

often can go unnoticed. But we know, particularly in these crazy, hazy,

mad days in British Columbia whereby those who may hold a different

political belief than those in power.... We know what can happen

sometimes if they are in a particularly sensitive job. We know, for

instance, that public servants in the province do indeed feel very

scared that if they happen to support another political party beside

the one currently in power, they have things to be worried about.

[ Page 4572 ]

I am concerned that in Bill 11 and in Bill 19, which did not take

care of this particular issue, political belief may be and will be a

reason for discrimination in tenancy. The member to my left, wherever

he hails from, says: "Sure, it's good reason for discrimination —

political belief." There we are, Mr. Chairman; we have a member of the

government already saying what we feared, that political belief is a

good reason for discrimination in tenancy. That's the very reason we

indeed need to have something in it. If you happen to be of a different

political persuasion than your landlord, it will be quite easy now,

with Bill 19 being very weak and now Bill 11, to discriminate or deny

or find ways to evict a tenant because of political persuasion. That

sort of discrimination, particularly on political grounds, is totally

alien to the Canadian way of life. There are certain things that have

been guaranteed in Canada — freedom to support any political party.

When a piece of human rights legislation omits that tenants — 380,000

of them — may indeed be subject to discrimination because they hold a

political belief other than that of their landlord, it raises all sorts

of problems.

[2:30]

There is no question that the whole question of tenants' rights, the

whole question of residential tenancy legislation, has become a very

controversial matter. Because of the current attitude of the

government, tenants have had to become political to protect whatever

rights they currently enjoy, and there aren't many.

Mr. Chairman, tenants play a vital role in many community

organizations. Quite often they make public statements on issues of the

day. Because of the weaknesses of this section, they are vulnerable to

discrimination in housing as a result of this piece of legislation.

Some 380,000 tenants, 36 percent of all households in British Columbia,

do not have protection under the Human Rights Act against

discrimination based on political belief in terms of what the landlord

may do to them. That is, I hope, an oversight by the minister. I hope.

Tenants appear at all levels of government to make known their

concerns on a wide range of community issues. Under Bill 11, Mr.

Chairman, there will be nothing to stop a landlord from discriminating

by saying, "Well, I don't like that person anymore," or, if they come

to rent a property: "Well, you're active in your community. You may

have political beliefs that don't go along with mine." Therefore, Mr.

Chairman, that landlord can deny tenancy to that person.

They often appear at municipal halls speaking on behalf of tenants

and usually in opposition to insensitive development proposals. That

raises a whole other issue, another set of scenarios that may arise for

those tenants who organize and speak out on tenants' issues. They may

be discriminated against. This has to be plugged. Specifically, many of

these tenants have spoken out through their own organizations on the

changes to residential tenancy legislation. Now they have very little

protection in Bill 19, the Residential Tenancy Act. Those people who

have spoken out against the government will have no protection in the

Human Rights Act for speaking out against this government. Think about

that, Mr. Chairman: one large group in British Columbian society,

tenants, will have no protection in terms of political belief under

this

section relating to tenancy premises. It's a major oversight, and

it is most unfortunate.

Mr. Chairman, even the Minister of Energy, Mines and Petroleum

Resources (Hon. Mr. Rogers) claims in his motion on the order paper

that anyone should be allowed to speak anywhere on any subject in

British Columbia. That's Motion 22. That minister's beliefs are totally

not going to be met in this particular section, because 36 percent of

the population of British Columbia are going to be denied protection

under the Human Rights Act in terms of their political belief. Indeed,

tenants run a risk of retribution from the failure of this government

to protect them against discrimination based on political belief. I

would hope the minister will take that under advisement.

The second area which concerns me is the discrimination in age that

could happen under this section. Why is there no protection, for

instance, for seniors in this bill? Is it this government's policy to

discriminate on the basis of age? In the B.C. Housing Management

Commission's rules, which I think should be challenged and reviewed,

there is written right in the rules, policies and procedures

an act of

discrimination. I will read this particular section:

"Couples, one of whom is over the age of 55, overhoused

in a family development, will be required to move to a senior citizen building.

Consideration will be given to area/building preferred but cannot be guaranteed.

Where there is no senior citizen accommodation within a reasonable distance,

a one-bedroom family unit may be considered. Where no one bedroom accommodation

exists, a notice to terminate tenancy is in order."

In other words, they will try to find something, but a notice of termination

is always the last resort. This, Mr. Chairman, is an area of concern. There

certainly is nothing in this piece to protect seniors in that situation.

MR. CHAIRMAN: I will remind the hon. member at this point

that discussion about age should have been more correctly discussed in

second reading or in

section 1, the

interpretation

section of the act.

Further, neither

section 5 nor the member's amendment refers to age. So

the discussion would be irrelevant at this point. If we could return to

the relevant material in the amendment, please.

MR. BLENCOE: Mr. Speaker, I'm just trying to give the

government some indication that particularly in the tenancy

section

there are some definite weaknesses, which I think have to be considered.

The area that I do state in the amendment is the whole question of

family composition. It is one that I won't take much time on, but I

happen to think it is an extremely important issue in the province of

British Columbia. Something we have not come to terms with — we have

done very little about it — is the rampant discrimination in rental

accommodation based on family composition. I don't think I have to tell

that to members who have read the ads saying: "No pets and no

children." It has become clear that in many respects, in terms of

rental accommodation, families are second-class citizens. I know it's a

controversial issue. There are landlords who say, "I don't want

children in my building," etc., and they feel it's their right. The

issue is that more and more families are having to live in rental

accommodation, but of course they can't find rental accommodation

because landlords are able to discriminate based on family composition.

It's a very important issue, one that British Columbians concerned

about families finding decent shelter have to deal with. We've got to

come to terms with it, because families are becoming not wanted — not

only in many areas of other

[ Page 4573 ]

pie ces of

legislation, but there's nothing in this one to ensure that those with

families get decent shelter. They continue to run up against: "No

children." "We don't want families here." It's an issue we have to deal

with. In my own riding — and I'm sure in everybody's riding — we

continue to hear that families, particularly those who have smaller

incomes than some others of us.... It's very difficult to find decent

accommodation, and it's even harder when landlords don't want children

in their buildings. It's something we must address.

I won't take much more time. Suffice to say that I think this

amendment does ensure that tenants are protected and have rights, as

was not done in Bill 19. It's a reasonable amendment and should be

endorsed by this House.

Amendment negatived.

Section 5 approved.

section 6.

MR. GABELMANN: Mr. Chairman, I would like to move the amendment I left on the table late last week, which would read as follows.

"To delete

section 6 and substitute the following:

"6(

l) no person shall publish or cause to be published

or otherwise display or disseminate any invitation to apply for

employment, or any advertisement in connection with employment or

prospective employment that directly or indirectly classifies or

indicates a limitation, specification or preference in relation to a

prohibited ground of discrimination;

"(2) no person shall use or circulate any form of

application for employment or conduct any written or oral inquiry that

directly or indirectly classifies or indicates a limitation,

specification or preference in relation to a prohibited ground of

discrimination;

"(3) no person shall request any applicant for

employment to furnish any information concerning a prohibited ground of

discrimination; and

"(4) no provision of this

section shall be construed

as prohibiting a limitation or specification stating that an applicant

for employment must be capable of performing specific tasks or duties

related to the employment or prospective employment or from requesting

an applicant for employment to furnish information concerning the

ability of the applicant to perform tasks or duties related to the

employment or prospective employment."

Mr. Chairman, the problem that we have with

section 6 of this bill

is that while it does give protection against discriminatory

advertisements, it does allow discriminatory limitations if they are

"bona fide occupational qualification" — and I'll come back to that

later on. More significantly, it does not cover employment application

forms. If the

section before this House is approved as is, we will be

the only jurisdiction in this country, I believe, that will not or does

not prohibit discriminatory application forms.

An employer putting an advertisement into a newspaper — or in

whatever form — that puts an onus on the publisher to attempt to define

what is or is not a bona fide occupational qualification.... For the

most part, where the matter is grey, the publisher would have very

little option but to take the employer's word that the limitations

involved are in fact bona fide occupational qualifications. I would

argue that this puts the newspapers and other publications in an

untenable or impossible position because they're going to have to

accept the advertiser's words. It also makes cases far more complicated

than if we were specific, as we propose in the amendment that has just

now been presented.

Our amendment to subsection (4) provides the prospective employers

with the needed latitude — and I accept that they need some latitude to

discriminate; for example, obviously someone hiring a secretary needs

to be able to discriminate against people who can't type. That's a kind

of discrimination — and there are many — that's appropriate and fair.

But our amendment would preclude that prospective employer from saying

words such as "man wanted," or "must be able-bodied," or a variety of

terms that may or may not be appropriate to that particular job that's

being advertised. Our amendment would allow an employer to state that

the applicant must be able to perform heavy lifting. It would allow

that questions directly related to the ability to perform required

duties be allowed — as I mentioned before, typing, or whether or not

you have a valid B.C. driver's licence for whatever category is needed

in that particular job. So we're not being silly about the issue; we're

just wanting to point out that in the bill before the House there will

now, as we read it, not be any prohibition or any requirements that

discrimination not take place in the job application forms or

advertising.

Rather than make a big speech about it, Mr. Chairman, I would

appreciate it if the minister would tell me either that he believes

that that is already covered somewhere and somehow, or, alternatively,

that he doesn't believe it should be. I'd appreciate some indication.

[2:45]

HON. MR. McCLELLAND: Well, it's quite clear that employment

advertising in publications, whether they be print or electronic...is

prohibited now under the terms of the bill. The onus wouldn't

necessarily be on the publisher, in my opinion, but if someone felt

that they were aggrieved, they have the opportunity to put in a

complaint, through the bill, to the Human Rights Council. If in fact it

wasn't bona fide, I'm sure the council would rule in that way.

On the matter of applications for employment, it is not in the bill

and it is not covered anywhere else. The member is correct in that way.

It was felt that it wasn't necessary. In fact, the important part of

this legislation is whether or not an employer refuses to employ a

person because of one of the prohibited sections of the act, whether it

be sex or physical and mental disability or whatever, so the important

part is whether or not that person gets the employment. As a matter of

fact, I would think that if an employer said, for instance, on an

employment form, "Are you black?" and the complainant made a complaint

that they weren't hired because they were black, I think they would

have a pretty good case and the employer would have contributed to that

good case. So it's in an employer's best interest not to ask questions

which could be construed as being prohibited under this act. We had a

lot of advice on this, and I was convinced that the advice that that

section was not necessary was correct.

MR. GABELMANN: I've had advice, too, Mr. Chairman — obviously

different from the minister. It's not clear at all to me. Leaving aside

the question of newspaper advertising, because I really do want to deal

with the job application form, I think it's quite clear that

section 6

does not deal with

[ Page 4574 ]

job application forms; the minister said that. If

on an application form the question "What's your race; what's your

colour; what's your creed; what's your political belief?" — any number

of those questions — were asked, they are not precluded in job

application forms when you read

section 6. If I understand the minister

correctly, he's saying they are also not precluded anywhere else in the

legislation. If I understand his argument, he's saying that we don't

need that, that job application forms are somehow different from

newspaper ads or different from any other activity of discrimination. I

must say I don't understand why we would not allow it publicly, but

would allow it in this semi-public form of a job application form.

HON. MR. McCLELLAND: Well, you know, what we're obviously

attempting to cover in public locations is the kind of employer who

would say: "Truck driver wanted. No blacks need apply." You know,

that's very clear-cut. Or: "No women need apply." We want to make sure

that that's absolutely covered. And it is covered, Mr. Chairman. That's

why I was convinced that we should put that

section back in. I don't

think that in this day and age anyone would do that, but we don't want

to leave the opportunity there for them to do that.

If you were an employer and you had a job application form and you

knew that the law said that you cannot discriminate against a person

because that person is black, and you asked that person on a form

whether or not he was black or whether or not he had a physical

disability.... I'd be frightened to death of doing that, because if the

person then decided that he or she didn't get the job because of a

physical disability, he or she would go to the Human Rights Council.

They're going to look at what the employer asked, and think it was

pretty clear that that was the reason for not hiring that employee. So

I think, Mr. Chairman, that not having this may be a significant

advantage rather than a disadvantage.

MR. GABELMANN: The words are: "No person shall publish or cause to be published an advertisement in connection with employment...."

I don't think the Human Rights Council would view a job application

form as an advertisement. Okay? I think this is kind of what we agree

on and what we disagree on. I think we agree that under this

section no

employer is going to run an ad in the newspaper saying: "Truck driver

wanted. No blacks need apply." No employer is going to do that because,

if that employer did, he or she would be in violation of

section 6. We

agree that you can't discriminate on these bases, including race or

colour, in advertising for jobs. But I think the council, in

interpreting the legislation, would have some difficulty — maybe they

can do it; I can't see how — in determining that a job application form

that an individual picks up and fills out either at the Canada Manpower

office or at the employer's office, which says on that form not, "No

blacks need apply," but "How old are you? What's your name? What's your

address? What's your place of origin? What's your gender...?" Nothing

section 6 precludes that. It doesn't say, "No blacks need apply," to

use the minister's phrase, but asks a series of questions that are not

relevant to the job, and they're not precluded under this

section or

any other section.

I would appeal to the minister to understand that what I'm

attempting to do this afternoon, which might be a little bit different

than what I might have been doing Friday afternoon, is to point out

some areas of the bill where I think the minister's intent and ours

would in fact be the same — based on what I understand the minister is

saying in general — and to try to point out where the bill is in fact

silent. Job application forms, in my view, are clearly not covered in

any questions pertaining to non-relevant issues, such as the ones I

mentioned, that can be asked. While the employer may never admit to it

at a board of inquiry, without there being any proof of it, it could be

used as a reason for the employment not being granted.

MR. ROSE: Mr. Chairman, the minister and I had a little

go-round on this on Thursday afternoon, because I was concerned about a

person from my riding who had applied as a baker's helper to an ad

placed in the local paper, saying "person wanted as baker's helper." By

the way, she was refused it because, in the words of the ad, the baker

had a preference for a male. The minister assured me that there could

be a case come about as a result of this. I'm not convinced about that,

but I haven't sought legal advice to find it out either. I'll admit

that at the outset. I think what the member for North Island (Mr.

Gabelmann) is saying is that this kind of discrimination is not going

to occur at the ad level. Someone would be absolutely stupid to put an

ad in the paper that no blacks need apply. It is not going to occur at

that level, any more than "person" wanted for baker's helper is going

to appear in an ad.

On two or three of these clauses you have "limitation specification

or preference, based on a bona fide occupational requirement." That's a

big loophole, especially on preference. If he ever admitted that he

preferred to have a male baker's helper, the case has to be proved. It

is very simple to prove it if discrimination occurs in a printed form

or on the media in such a way that it can be recorded, but very few

people are going to tape record the conversation when they phone up to

see if they got the job. That's the problem with it.

I think I related as well that the experience in the United States

indicates that there really aren't many examples, other than the ones

cited by the member for North Island. A secretary is expected to be

able to type; a truck driver is expected to be able to drive. But on a

sexual bias, only two occupations were uncovered. As the song goes,

"Anything you can do, we can do better" — or at least as well. This is

what my concern is and why I support the amendment. There are two

occupations. One was an attendant in a ladies' washroom, where it was

felt that a woman would probably be more appropriate for that kind of a

task; the other one was actor or actress, specifically, although in

Shakespeare's time that wasn't necessarily seized upon as a difference.

My concern is that I don't think that it offers protection if there

is merely a prohibition against the publication or advertisement of

another kind, say on the radio. What I am concerned about is that there

are only two occupational requirements that we know of that are bona

fide. Sure, strength is an important thing. It might be as far as the

baker's helper is concerned, but this person clearly had a preference

for a man, and yet was required by the law to say "person," but when it

came right down to the verbal response to the applicant, it was a clear

case of discrimination which you couldn't really prove. That is why

we're concerned about this.

The same loophole appears again in clause 8. It is the same thing

that we're trying to plug by this amendment, because we're expressing

this kind of concern. Not that the act is deliberately out to

discriminate itself, but it is weak in

[ Page 4575 ]

this regard, and probably legally weak as well. So I'd be interested in the minister's comments.

HON. MR. McCLELLAND: I don't think I'll ever convince the

member of that. The prohibition of employing a person has nothing to do

with the

section we're dealing with now. The prohibition of employment

is in

section 8, and it really doesn't matter what violations you make.

You cannot advertise right now for a male to fill that position that

you're talking about, but you can't discriminate, no matter how you

advertise the position, by not hiring a person because of that person's

sex. There are hundreds and hundreds of cases every year which are

proved and corrected in this province, and which have and will be

corrected, because you can't discriminate in employment on the basis of

sex. It's as simple as that. It happens every day, and it goes an awful

lot further than an attendant in a rest room. You cannot discriminate

on the basis of sex — period.

MR. CHAIRMAN: The minister has mentioned that perhaps some of

this debate on the amendment might be better covered under

section

Section 6 and the amendment to

section 6 deal with advertising.

MS. SANFORD: The minister has indicated to us, Mr. Chairman,

that he is not prepared to allow discrimination to take place through

advertising; he has mentioned that under this particular section. I

would like to know why, then, he is prepared to allow employers to ask

the kinds of questions on an application form which they are not

permitted to advertise publicly. Why, if he is prohibiting the use of

discriminatory language by employers in advertising, is he prepared to

accept it as part of an application form? He obviously is prepared to

do that. I wonder if he could explain to me why he is prepared to

accept it in one avenue and not in the other?

HON. MR. McCLELLAND: I think I already did explain that, Mr. Chairman.

[3:00]

MS. SANFORD: For what reason does the minister feel that it

is acceptable for an employer to ask, on an application form, political

views, for instance? Why would the minister find that acceptable? I

don't know if the minister is listening. Is it acceptable? Maybe he's

getting advice from the Attorney-General on this. Why is the minister

not prepared to say: "Mr. Employer, you cannot ask, on an application

form, what a person's political views are." "Mr. Employer, you are not

permitted to ask, on an application form, the colour of an applicant's

skin."

The minister said he can't discriminate when he actually employs;

then why on earth does he need to have that information on the

application form? It seems to me he is opening the door here for

employers to discriminate, by allowing those kinds of questions to

appear on an application form. The minister has not explained to the

satisfaction of those of us who sit on this side of the House why it is

okay for employers to ask, on an application form for a job, "What is

your political view?" "What colour is your skin?" "What is your sexual

preference?" and on and on — all kinds of questions about height,

weight and things which may or may not have anything to do with the

job. If he doesn't need to know, if it's a question related to an area

in which discrimination can take place, then in my view those questions

should not appear on the application form, because it's an open

invitation for the employer to hire on that basis. It is also very

difficult in many cases to prove that he hired on some other basis.

MR. CHAIRMAN: Again I'll remind the committee that this

debate would be much more relevant during discussion of

section 8. We

are dealing with advertising specifically now as we look at the

amendment to

section 6.

HON. MR. McCLELLAND: I agree with you, Mr. Chairman.

Obviously my explanation has not sunk in and perhaps I didn't give it

well enough. We don't think the

section that's being proposed in the

amendment is necessary because

section 8 is so clear that

discrimination in employment practices on any of the specific grounds

is against the law.

MR. GABELMANN: I recognized and anticipated the deflection of

this debate onto

section 8. In fact, if an employer using this

application form had as one of the questions, "Please list all of the

organizations of which you are a member," and one of the answers was

Knights of Columbus, that's an indication that the respondent is a

Catholic. But that would be appropriate under

section 6 or 8. I guess

what we're trying to do, in recognizing that

section 8 can be avoided

in several ways by employers, is to deal with the issue. We made a

judgment that this question of discriminatory application forms can

best be dealt with in the job application

section —

section 6 of the

act.

Let me put it another way, because clearly that line of argument

won't work.

Section 8 deals with the employment itself;

section 6 deals

with the advertising for that employment. Application forms clearly

then, I think this House could agree, fall in between. The minister

would argue that it's

section 8 and is covered. I would argue that it

isn't covered in a question about which organizations you belong to. In

answering that question, you will unwittingly give answers to questions

that should not have been asked.

I'm not going to pursue it much further. I think the cleanest and

simplest way of dealing with that is to recognize that an application

form is something being published about the particular job and

therefore should be included in

section 6.

I'm going to ignore all of the other arguments we've made in this

particular

section and say to the minister that the other day, in

debating the hoist motion, I made some mistakes. I'll admit to that

quite clearly. I had a piece of paper in my hand that referred to notes

that I thought were Bill 11, when in fact they were on Bill 27. The

minister said, "You're wrong," and I'm admitting it. There are

occasions when it might be possible — I know it doesn't happen very

often — that the minister is wrong too. I'm suggesting to him that if

he believes that application forms should not be allowed to ask

potentially discriminatory questions, he should simply add a minor

amendment of his own — ignore our amendment as he did in

section 3, in

clarifying the kind of insurance he meant — clarifying in this case

that application forms also cannot ask those kinds of discriminatory

questions.

Amendment negatived.

Section 6 approved.

[ Page 4576 ]

section 7.

MR. GABELMANN: On

section 7, I have an amendment which is also on the table, I believe. It reads as follows:

"By deleting

section 7 and substituting the following:

"7(

l) It is a discriminatory practice for an employer

to establish or maintain differences in wages between male and female

employees employed in the same establishment who are performing work of

equal value.

"7(2) In assessing the value of work performed by

employees employed in the same establishment, the criterion to be

applied is the composite of the skill, effort and responsibility

required in the performance of the work and the conditions under which

the work is performed.

"7(3) Separate establishments established or

maintained by an employer solely or principally for the purpose of

establishing or maintaining differences in wages between male and

female employees shall be deemed for the purposes of this

section to be

a single establishment.

"7(4) An employer shall not reduce wages in order to eliminate a discriminatory practice as described in this section.

"7(5) For the purposes of this section, 'wages' means

any form of remuneration payable for work performed by an individual

and includes salaries, commissions, vacation pay, dismissal wages,

bonuses, reasonable value for board, rent, housing, lodging, payments

in kind, employer contributions to pension funds or plans, long-term

disability plans and any other advantage received directly or

indirectly from the individual's employer."

What we have here is the classic debate that goes on in this country

between those people who believe on one hand that women should receive

equal pay for equal work and those of us who believe on the other hand

that work of equal pay for work of equal value should be the overriding

principle.

The federal Human Rights Act adopts the principle of equal pay for

work of equal value. This bill adopts a principle of equal pay for work

of similar or substantially similar value. There is a significant

difference, and I think the minister is probably well aware.... I'm

hopeful that the advisory committee that advised him on the legislation

gave him the advice that he should have taken concerning this

particular section.

[Mr. Pelton in the chair.]

By our amendment we are in effect going beyond what we had before in

this province. I think it's a principle that has been well established,

well adopted, in recent years: that is, the principle of equal pay for

work of equal value. The problem is the language used by the bill or

the Code, which uses similar language which has been in effect for ten

years. The problem is that the protection for women in that case only

applies when the jobs are similar. Therefore, for example, a women can

lose a case because her lower-paying job has many duties and

responsibilities not required of a higher-paid man. Ironically, in this

case the added duties that a women might have in effect allow the

employer to say: "It's not similar work; therefore we can pay a lower

wage." In fact, there have been enough cases to demonstrate that that

loophole does exist. This is avoided by using the term "equal pay for

work of equal value."

The federal experience with this language has, I think, demonstrated

clearly and conclusively that there are no problems involved with using

that concept. Obviously there were many in our society who predicted

that that concept would lead to difficulties in

interpretation and in

applying the principle. The fact is that we've not had those problems

at the federal level. I see no reason why the concept of equal pay for

work of equal value could not be adopted by us too in British Columbia.

HON. MR. McCLELLAND: Mr. Chairman, I see a number of

difficulties. The words that we have in the present Code and in the

bill which is presented to the House now have worked very well in this

province. It's been demonstrated that they've worked well. The whole

concept of equal pay for work of equal value perhaps should be looked

at in another forum besides this one right now. Perhaps there should be

some kind of a commission set up to study the application of it.

I see some real dangers to freely bargained collective agreements in

the same company which may have three different unions. One of those

unions may bargain a wage which is, say, $2 an hour above what the

other union has. What do you do if you get an application that the work

is of equal value? Do you automatically say then, if that's the case,

you bring the other person up to two bucks, or do your say: "I'm sorry;

you bargained that collective agreement, but you bargained way above

the equal values so you go back down to the equal value"?

There's a lot of problems. You may say there aren't, but we've

identified many, many problems with that whole concept. The concept of

the same.... There is no doubt that a woman who drives a truck and a

man driving a truck should get the same pay. That's been established

quite well in British Columbia, and it's getting established more every

day as more case history happens. Mr. Chairman, I think there are so

many pitfalls here that may in fact destroy some relationships which

have been built up over the years, and only one of them is collective

bargaining. I think at this time the government can't accept this

concept. Certainly I would be willing to recommend to my colleagues

that perhaps some task force or something like that be put together to

have a look at the whole question. But at this time I think there are

too many questions and not enough answers.

MRS. WALLACE: Mr. Chairman, the problem with the minister's

position is that it leaves the gate wide open for discrimination to

continue to occur. It doesn't take any steps to prevent that.

The similarity of a job — as my colleague has pointed out — can be

destroyed completely by adding to the woman's duties that she is

responsible for making the coffee. That has been a case in point. I

recall an arbitration case over that specific thing in the days when I

worked at B.C. Hydro. I think that if the minister were familiar with

what happened at B.C. Hydro, it would give him an idea of how this

problem can be resolved. What happened there was that women in the old

B.C. Electric had a different pay scale than men for the same job. When

the merger took place and B.C. Hydro was formed, there was a concerted

move on the part of the amalgamated trade union and employees'

association and

[ Page 4577 ]

B.C. Hydro to take some steps to get rid of those

two salary scales. There was a joint committee with the various unions

involved — OTEU, IBEW, ATU — and management. They sat down and

evaluated the jobs and the value to the company, whether an account

clerk or a lineman out on the job, and they set some various criteria:

if you're a lineman your job has more value, because you're required to

go out and work in the elements and go out on calls at night. Those

criteria were taken into consideration, and an overall classification

was drawn up where jobs were considered of equal value and the pay

scale, based on that, was set accordingly. It's not an insurmountable

problem. It's something that has been accomplished by B.C. Hydro, the

Crown corporation, and it is something that is long overdue, because we

continue to see women discriminated against.

[3:15]

Of course, just resolving this isn't going to resolve the problem of

discrimination against women in the workplace. The minister will be

aware that the report that B.C. Hydro put out very recently indicates

that women are still being discriminated against in the hiring, in

spite of all that kind of work. Something like 80 percent of women are

in those low-paid brackets of the 2 to 5 steps on the salary range. The

reason that is happening is that we don't have the strong legislation

that we need in this province to prevent that kind of discrimination.

We have no affirmative action programs within government or Crown

corporations. We do not even have, under the proposed legislation of

the minister, the strength that is required to ensure equal pay for

work of equal value. He's talking about similar work, and he might as

well not even write it into the act, because it has utterly no meaning

when it comes to practice and actually relating and equating that to

jobs in question.

HON. MR. McCLELLAND: I think a lot has changed. First of all,

I agree that it's a lot like collective bargaining. A group of people,

employers and employees, can sit down and evaluate jobs. That's a

legitimate way of deciding what the basis of bargaining should be. It

can also fail, as it did to a very large degree in the hospital

workers' situation, where they tried to do this and worked for

something like two years attempting to evaluate jobs within the

hospital industry. They were successful in some, but it just got to the

point where we were talking about $200 million in additional costs and

then it got badly bogged down.

MRS. WALLACE: That shows the size of the underpayment.

HON. MR. McCLELLAND: Well, maybe it shows some size of an overpayment. You can argue that either way.

What I said earlier is that lots has changed, and there has been an

awful lot of case law now which makes the workplace much more fair than

it used to be. We frankly don't get an awful lot of complaints anymore

about straight discrimination on payment between men and women.

Sometimes it is done in ignorance, and when they realize that they've

done it, they fix it. That's really all that is necessary for us to do.

There is the odd case yet, but it's not the problem it once was. I just

think that there are so many ramifications in here to so many parts of

society that I'd like to look at it a while. As I said to the Chairman

earlier, the government isn't prepared to accept it at this time, but

we are prepared to have a look at it. This Legislature will be sitting

again, I hope.

MR. GABELMANN: First of all, Mr. Chairman, I wanted to say

that I appreciate the fact that the minister is suggesting that some

form of commission or study be undertaken, and I welcome that. I hope

that that's not an effort just to put it on the back burner and when

some report does come down it collects dust on the shelf like so many

others. I trust that that's a serious suggestion and that we will reach

some conclusions in time for a legislative session not more than 12

months from now. Clearly we're not going to win this issue here today.

I would rather win a year from now than not at all. So I'm prepared to

accept that.

The minister talked about the question of different unions with the

same employer having different remuneration schedules for work of equal

value. Job evaluation is the recognized method of dealing with that

particular problem. I'm not proposing or suggesting that we adopt

holus-bolus the American approach to this issue in which what happens

is that the underpaid employees have in effect, in many cases, been

granted back pay in substantial numbers of dollars to bring them up to

the higher rate in each of the cases where women had been underpaid.

That's probably an appropriate solution, but that's not the way it

would be done here. It would be done through job evaluation.

Job-evaluation programs are always done jointly between management and

its unions. It seems to me to provide the obvious apparatus to solve

that particular problem.

As the member for Cowichan-Malahat (Mrs. Wallace) points out, it is

interesting how we can adopt a principle or pretend to adopt a

principle that women and men should be paid equally, but suddenly when

it costs $200 million it's not a principle anymore. I've always

wondered how principles can have price-tags. But they appear to, in

this particular case.

In

summary I say again that the federal legislation has demonstrated

over some years now that the concept of equal pay for work of equal

value is workable in this country. The minister didn't mention the

American precedents, and we don't need to follow those precedents. We

have our own ways in this country, better ways in my view, of working

out those problems outside the judicial system, where they seem to be

locked into making decisions that often don't make sense. But we have

alternative ways, and the job-evaluation program is one.

I would just say to the minister that again I trust that this study

will be based on his agreement with the concept, with the implication

or the conclusions of the concept of equal pay for work of equal value.

Because we do have the situation frequently where women have jobs that

are more responsible and are paid less because they are not similar

jobs. That's an important element in a lot of employer-employee

situations in this province. It has not and will not be dealt with

either by the Code that we've had or the case law that's been developed

over the years in that Code. Certainly, because the language is the

same, it's not going to be dealt with in this particular bill.

HON. MR. McCLELLAND: Mr. Chairman, I don't know whether I can

do much more at this time anyway. I have still have the same worries. I

don't think the matter has been tested a lot at the federal level. I

guess I ask the question: what do you do in a case of a collective

agreement?

Interjection.

[ Page 4578 ]

HON. MR. McCLELLAND: Job evaluation? When? There are

companies that have three, four or five different unions, and they

bargain collectively to decide what their wage level will be; that, I'm

sure, includes men and women as well. I can't be comfortable with it,

and I can't accept the arguments the member makes that it's all so easy

to do. Again, I'd be willing between now and the next session to take a

serious took at the whole question, do some serious studies about

problems as well as advantages, and come back. But at this time the

government can't accept the amendment.

Amendment negatived.

Section 7 approved.

section 8.

MR. GABELMANN: Again because the amendments which were

presented aren't printed on the order paper — simply because of the

rules — I'm going to have to read this amendment. I apologize in

advance not only to members of the House but to myself for the boring

nature of reading two pages of the amendment, but I intend to do it.

"That

section 8 be amended by deleting

section 8 and substituting the following:

"8(

l) Everyone has the right of equality of

opportunity based on bona fide qualifications in respect of his or her

occupation or employment or in respect of an intended occupation,

employment advancement or promotion, and without limiting the

generality of the foregoing,

"(

a) no person nor anyone acting on his or her behalf

shall refuse to employ or to continue to employ or to advance or

promote any other person or otherwise discriminate against any other

person in respect of employment or a condition of employment, and

"(

b) no employment agency shall refrain from referring

any person for employment or otherwise discriminate against any person

with respect to employment unless reasonable cause exists for such

refusal, discrimination or conduct.

"

(2) For the purposes of subsection 1,

"(

a) the race, religion, colour, ancestry, place of

origin, marital status, physical or mental condition, sexual

orientation, political belief, age, family composition, source of

income or language normally spoken shall not constitute reasonable

cause,

"(

b) the sex of a person shall not be reasonable cause unless it relates to the maintenance of public decency,

"(

c) a provision respecting Canadian citizenship in any act constitutes reasonable cause,

"(

d) a conviction or a charge for a criminal offence

or other

summary offence shall not constitute reasonable cause unless

such conviction or charge relates to the occupation or employment or to

the intended occupation or employment.

"

(3) No provision of this

section relating to age

prohibits the operation of any term of a bona fide retirement,

superannuation or pension plan or any terms or conditions of any bona

fide group or employee insurance plan or of any bona fide scheme based

upon seniority.

"

(4) This

section does not prohibit the refusal to

continue to employ a person because that person has reached the age

specified in a contract of employment or collective agreement as the

age of retirement, provided that such contract or collective agreement

specifies an age of retirement that is normal for individuals working

in positions similar to the position of the person whose employment is

terminated, and provided further that such contract or collective

agreement provides pension or other benefits sufficient to allow such

person to maintain a standard of living comparable to that enjoyed by

the person prior to such retirement.

"

(5) The provisions of this

section do not prohibit a

refusal to employ or to continue to employ or to advance or promote a

person or to otherwise make a distinction with respect to a person or

to refrain from referring a person for employment because such person

is not capable of performing tasks or duties that constitute a

substantial and important part of the employment or prospective

employment or the employment of the person would create an unreasonable

risk in terms of safety, provided that such determination is based upon

an assessment of the capabilities of the individual and, to the extent

possible, the safety risks pertaining to the individual and not upon

characteristics assumed to be common to a group of which such person is

a member."

There are a number of principles involved in this, Mr. Chairman. I'm

not going to repeat all the arguments on the essential one, the

question of reasonable cause, which seems like such a reasonable way to

me and to our side to solve many of the problems in this part of the

legislation. So I will leave that, other than to say that in terms of

discrimination in employment such a reasonable cause

section could in

fact make sure there was no discrimination in relation to various of

the categories we've talked about before, such as people with not

family composition, age, source of income, sexual orientation — all

those categories which will now not be protected by this legislation.

[3:30]

I want to just suggest a couple of other elements of a principle

contained in this particular amendment. The problem with doing so many

of these is that you've got to read, think and talk all at the same

time sometimes, and it's a little bit difficult. In our view the

question of allowing discrimination in this

section of Bill 11.... No, I will leave that alone; that deals more properly with another section.

The question of mandatory retirement. The minister talks about

commissions and studies, and there's a good subject for a study. I

suspect that if we were taking free votes in the Legislature or in the

community affected by mandatory retirement, we'd have interesting

divisions. I know that there are divisions within the trade union

movement on the question. I personally happen to be one who finds the

concept that because you reach age 65 you suddenly are no longer useful

to the workforce to be quite inappropriate. I think there are some

people who at age 55 or 48, or 83 might have reached an appropriate

time for retirement. We don't have a mandatory retirement clause in the

Legislature — I'm not going suggest that we do....

[ Page 4579 ]

HON. MR. McCLELLAND: Fifty.

MR. GABELMANN: How about 40? It's a question and I don't want

to be too light about it.... There are any number of individuals who

can contribute very well to their particular job past the age of 65. I

think that individuals in senior management positions who are forced to

retire at 65 often have an opportunity then to start a new career. I

think of Tom Rust, who is an excellent example of a very capable person

who reached retirement age in his company, and he was taken on by the

government to do a particular job at Expo 86 — an excellent kind of use

of people who reach 65. But for most ordinary working people those

kinds of opportunities don't exist. What we have, in fact, is somebody

working virtually full-time up to the time they reach that magic

number, they may still be in good health and then they have to retire.

For many of these people it's a death sentence.

So I just raise the topic not for any extensive debate this

afternoon, or in fact for any criticism about whether or not this issue

should have been covered in the Code, because I do think that on this

issue some considerable public discussion needs to occur before we

start to change what have been accepted ways of doing things. I suspect

the public is ready for a change in this particular concept. Anyway,

I'll leave that alone for the moment. There are obviously other

elements to age discrimination at the other end of the scale — not to

make a big political speech of it — and it baffles me how we can say in

Human Resources income assistance programs that because you reach 25

you're suddenly eligible for more than when you were 24. There are a

whole number of kinds of discrimination based on age that seem to me to

be inappropriate, and we might consider them when there is some study

done about the whole question of age.

Our proposed subsection (5), Mr. Chairman, the final one of this

list, we would argue, is a less discriminatory substitute for the

language that's contained in the bill. In respect of the bona fide

occupational qualification, the thrust of the subsection is that a

person cannot be excluded because of sex or physical disability or on

any other discriminatory ground, but they can be excluded if they are

not capable of performing the required work, as long as that

determination is made after an individual assessment of the capacity of

the person. Here we come to.... You have to be five foot eight to be a

police officer, you have to be five foot ten to be a firefighter, you

have to be 200 pounds, or any number of those discriminatory

measurements that are made on the basis of an arbitrary decision rather

than on an opportunity for the individual to be considered.

I find it amusing that quite often in this House, despite the public

rhetoric of each of our parties, we end up defending the rights of the

individual. The government is saying: "No, no, the collective is more

important. We're going to make decisions based on that collective

group." Because they are under a certain size or have a certain

physical feature — when I say that I'm really talking about height or

weight — they don't meet certain qualifications; therefore they're not

eligible for certain jobs. To take the collectivist approach in that

respect seems bizarre when in Social Credit one always talks about

protecting the individual. It seems to me that if a five-foot-five

individual has the physical strength and whatever else is required to

do a job that has heretofore been considered able to be done only by

persons five foot ten or over, then that person who is five foot five

should be able to have that job. I know that there are a lot of people

who are five foot five or less who are a lot stronger than I am. Just

because I'm tall doesn't mean I'm strong, and vice versa. I'm not

talking about moral values now. I think some serious considerations are

ignored by this particular section. I guess the Vancouver fire

department is the obvious example that springs to mind relating to

this. I'd be interested in the minister's response to those comments.

HON. MR. McCLELLAND: I think we've argued the matter of

"reasonable cause" a fair bit, and I would advise the member that I

haven't changed my mind over the weekend. So we could probably move on

as well to the matter of mandatory retirement. I couldn't agree more

with the member that it's probably time that all governments took a

very close look at this whole question, where it's going in society and

the effects it's having on society. I find, from my own point of view

in the ministry that I have, to be arguing the matter of mandatory

retirement on either side puts me in a rather hypocritical position,

because the government is the largest employer in the province, and we

have mandatory retirement at the age of 65. I think we've done some

innovative things with our public sector in developing early

preretirement programs to help our employees, if they wish. It's a

voluntary program. I'm told it's a very exciting program of ways in

which they can prepare for their retirement. I think more employers

should be doing that kind of thing while there is mandatory retirement

in place. If you throw mandatory retirement out, then what do you do

with all the young people coming up and trying to get into the

workforce? It's a very broad issue, as the member describes.

One of the areas that I think is in the member's proposed amendment,

I believe again has been largely covered by the events of cases which

have happened in the past: that is, the matter of discrimination within

the retirement program where companies have arbitrarily had a

retirement program at age 65 but felt that maybe they could keep

so-and-so on for another two or three years. Then that becomes another

discriminatory program, and I think that has been ruled to be

discriminatory already. It was before my time in the ministry, but I

think it involved one of the fish companies in northern British

Columbia.

Similar to the last amendment, I think we're getting to where that

member wants to get, again through the way the cases have been going. I

know it was a can company, and it might have been Continental Can,

which had a case in which they had a kind of height and weight test by

which many people, particularly women, were not given employment.

Through the process of discussion, boards of inquiry and others, that

company now has a skills test which is quite a scientific one and I

think does the job. The matter of the firefighters is the next

important step, I believe, and that's before a board of inquiry now. I

believe the results will be very important. I think we're going to get

where that member and I want to get through the means of those kinds of

things, and for that reason I'd like to be able to look at the results

of some of those boards which are already in place and see where they

go, and if they're deficient we may have to make some changes. But at

this time I think we're heading in the right direction, Mr. Chairman.

MR. GABELMANN: If the minister and I agree — and I suspect

our colleagues agree — I don't know why we have to wait for a board of

inquiry hopefully to make the right

[ Page 4580 ]

decision, and then if they don't, to perhaps

consider legislation later. It seems to me that the act is open and

it's a good time to implement the minister's view that skills testing

is more appropriate than height and weight testing. Let's just do it in

the legislation.

Amendment negatived.

Section 8 approved.

section 9.

MR. CHAIRMAN: We have two amendments on

section 9. Shall we hear the minister's amendment?

HON. MR. McCLELLAND: No.

MR. GABELMANN: Mr. Chairman, I think in fact that the minister's amendment is a new section. It is

section 9.1.

HON. MR. McCLELLAND: Mr. Chairman, the minister has changed

his mind and is going to do it in another

section now. I'm not sure if

that has been filed on the floor. I'm going to be asking to withdraw

that, Mr. Chairman, and I want to do it in

section 13, I believe it is.

I haven't got it printed yet.

MR. CHAIRMAN: All right, then we will proceed with the member for North Island's amendment to

section 9.

MR. GABELMANN: Mr. Chairman, I do believe that the way we do

things in legislation now is that when it's 9.1 — if it were; I know it

is not now — it would in fact be as if it were 10; it would be a new

section. In any event, that's by the by.

I would like to move an amendment on

section 9, which I also introduced to the table the other day.

"By deleting

section 9 and substituting the following:

"9(

l) Everyone has the right of equality of

opportunity based on bona fide qualifications in respect of his

occupation or employment, or in respect of membership or intended

membership in a trade union, employers' association or occupational

association, and without limiting the generality of the foregoing, no

trade union, employers' association or occupational association shall,

without reasonable cause in respect of the qualifications of such

person, (

a) exclude any person from membership, expel, suspend or

otherwise discriminate against any person or member, or (

b) negotiate

on behalf of that person an agreement that would discriminate against

him or her contrary to this act.

"(2)(

a) For the purpose of subsection (1), the race,

religion, colour, ancestry, place of origin, sex, marital status,

physical or mental disability, sexual orientation, political belief,

age, family status, source of income or language normally spoken shall

not constitute reasonable cause; (

b) a conviction or charge for

criminal offence or other such

summary offence shall not constitute

reasonable cause unless such conviction or charge relates to the

occupation or employment, or to the intended occupation, employment or

membership, of a person.

"

(3) No provision of this

section relating to age

prohibits the operation of any term of a bona fide retirement,

superannuation or pension plan, or any terms or conditions of any bona

fide group or employee insurance plan, or of any bona fide scheme based

upon seniority.

"

(4) This

section does not prohibit the refusal to

continue to employ a person because that person has reached the age

specified in a contract of employment or collective agreement as the

age of retirement, provided that such contract or collective agreement

specifies an age of retirement that is normal for individuals working

in positions similar to the position of the person whose employment is

terminated; and provided further that such contract or collective

agreement provides pension or other benefits sufficient to allow such

person to maintain a standard of living comparable to that enjoyed by

the person prior to such retirement."

Mr. Chairman, again we're basically doing two things in this

particular amendment. The primary one is the question of reasonable

cause. There just isn't any point, in my view, of repeating the

arguments relating to reasonable cause that were made all of last week

into Thursday night, and again in an extraordinary session on Friday

afternoon. I think the arguments have been well made by many members in

this House. The position has been taken clearly by the minister that he

will not accept it. I just want to say now that my prediction to the

minister is that he will find there are too many barn doors for too

many horses to gallop through in respect of this legislation because of

the failure to include such a provision. We've outlined some of the

ones that come to our minds immediately; clearly there will be others

that we haven't thought of and others that will develop as time goes on.

[3:45]

Also in this particular amendment to

section 9 we deal with the

question of mandatory retirement, which we have already talked about.

We both agree that this is an issue which contains some very serious

ramifications should we make it illegal; but I think we both agree, Mr.

Chairman, that we should find some way to move toward that direction.

HON. MR. McCLELLAND: I think the member correctly assessed my position, Mr. Chairman.

Amendment negatived.

Section 9 approved.

section 10.

MR. GABELMANN: I'll pass, Mr. Chairman.

Interjection.

MR. GABELMANN: I'm sorry, that's my mistake. I did not mean

at all to pass on

section 10. My next

section in order was

section 9.1,

which we're now dealing with in number 13. We're onto an important

section, and I almost blew that, Mr. Chairman. I have an amendment

which you have, and that's why you were ahead of me.

The amendment that I would like to present on

section 10....

Section 10, for the record in Hansard , is the first

[ Page 4581 ]

section in

part 2 of the legislation relating to

the council of human rights. I would like to move that we delete

section 10 as proposed in the bill and substitute the following:

"10(1) There is hereby established a commission to be

known as the British Columbia Human Rights Commission consisting of five members;

(2) the Lieutenant-Governor shall on the recommendation of the Legislative Assembly

appoint as officers of the Legislature members of the commission; (3) the Legislative

Assembly shall not recommend a person to be appointed to the commission, unless

a special committee of the Legislative Assembly has unanimously recommended

to the Legislative Assembly that that person be appointed; (4) the members of

the commission shall receive such salary or remuneration as is determined by

the Lieutenant-Governor-in-Council."

We basically intend to create a council or commission with this amendment.

I'm not hung up on what it's called. The minister may choose to call

it a "council"; we've chosen to call it a "commission."

It's a commission that would be independent of the political process in

the same way the auditor-general and the ombudsman are, and, incidentally, in

the same way the federal commissioner of human rights of this country is independent

of the political process and thereby given some opportunity to make public statements

about issues without having to make reference to the minister and without having

to fall within the guidelines prescribed by either the government or the ministry.

Our argument — although I haven't included it in the amendment and could

have easily done and perhaps should have done — is that there should also be

a fixed term. There should be some security of tenure in the appointment so

that whenever it's needed — hopefully it would never be needed — there is

a requirement to have the commission say that the government of the day is in

violation of the legislation. They would feel free to do so, because they're

not responsible to a minister. Also, they would have the security of the fixed

term.

Mr. Chairman, in second reading — I think maybe I did it in the

hoist motion, I'm not sure which — I spent some considerable time

reading the recommendations from B.C.'s ombudsman on that particular

point. I also note that the Saskatchewan Human Rights Commission has

made a similar recommendation. It was headlined in their newsletter of

July 1982. They suggest that independence for human rights commissions

is an idea whose time has come. I'll quote a couple of excerpts from

their report: "For if we cannot win and retain public confidence that

we will be steadfast in our law enforcement responsibilities, whether

the respondent is a private employer or landlord or the government

itself, then human rights commissions may well come to be perceived by

many as being part of the problem in the struggle for human rights in

this country." Later on it says: "With regard to the crucial matter of

tenure of office, only Quebec and the federal commissioners have the

security of knowing that nothing short of

an act of the legislative

body will see them thrown out of their offices." And still later: "In

terms of reporting, other than the Quebec commission, which like the

ombudsman's office enjoys a direct relationship with the legislative

body, all other commissions report to a minister." This bill proposes

the same approach. Interestingly, no annual report is needed. They go

on, and I'm not going to quote all of the other material in the

Saskatchewan Human Rights Commission newsletter.

I wouldn't make this argument for too many areas. The minister was

suggesting the other day that I was being inconsistent because I wasn't

making it in terms of the WCB. I may change my mind over the years to

come, but I have always taken the position that WCB commissioners being

appointed by the minister through order-in-council is appropriate. I

have no problem with that.

I think the obvious areas for legislative appointment of commissions

or commissioners or whatever are quite obvious, at least in my mind.

One is the auditor-general, which everybody in this House agrees to.

Another is the ombudsman, which I used to think everybody in this House

agreed to. It may not be as true now today as it was several years ago.

Thirdly, human rights. It's an issue that transcends the politics of

the day and transcends the normal agencies of government. It's

something much bigger than that. Independence is required in order that

those commissioners — or even if it's just the commissioner — have the

right and the ability to make comments that may, in effect, be critical

of the government. We've seen in terms of both the ombudsman and of the

auditor-general, in different ways, that public policy can be improved

because of the independence of those agencies.

So with that, Mr. Chairman, having made most of this argument last

week during the hoist debate, I will leave it for the moment here.

MR. ROSE: I would just like to say a few words on the

subject. I don't have a great deal of confidence that the amendment

will be accepted by the minister. It seems to me it's contrary to the

direction the government is going. Once upon a time we had for our

college boards a mixture of indirectly elected board members and those

appointed by the minister. Under Bills 19 and 20 of last summer and

fall, we had totally appointed college boards henceforth.

The fact that some of those people were appointed doesn't make them

any less worthy, but some of us can't be blamed for suspecting that

they may, because they're appointed by the ministry, owe their

allegiance to the minister rather than to education or the students.

That's the danger. There's always a danger when you have a system in

which there is always a suspicion or a likely suspicion that the person

is not totally independent. I think that's something that we should be

very concerned about.

One of the things we do when we appoint a judge is to ask him,

insofar as is humanly possible, to sever all connections with a

partisan political group. We want our judges to be independent. I think

that's probably an ideal rather than a fact. I'm not sure that many

judges could just take off that mantle of being sometimes a very active

politician one day and put on their cloak of complete impartiality the

next. I've always had difficulty with that one. As a matter of fact,

somebody — I think it was Joe Borowski, a member of the Manitoba

Legislature and ultimately a cabinet minister for a while — said:

"Well, what's a judge anyway? He's nothing but a lawyer who went into

politics." That may be partially true. I don't agree with Joe Borowski

entirely, I certainly think that he expressed a widely held view.

We don't want obedient board members, whether it's for colleges or

for the human rights. We don't want them to be obedient to the

minister. We also like to think that maybe they have some

qualifications other than being friends of the government. In the

United States we have a system in which congressional approval must be

given to cabinet ministers

[ Page 4582 ]

because they're not from the ranks of the elected.

Occasionally we will find that there are some people rejected by

Congress or else they withdraw the application because they turn out to

have some pretty substantial financial and other skeletons in their

closets. I think that before people can be appointed to this judicial

council or commission or whatever it ultimately is to be called, they

should be vetted through the Legislature.

Are they prejudiced in certain ways? Do they own large blocks of

apartment buildings or mobile-home parks or whatever? Can we be sure

that they don't have racist inclinations?

For that reason I think it's worthy of having a look at this

business of a person being proposed as a member of this commission,

being examined by the Legislature to see if his qualifications fit.

Then it's not on the minister's head at all and it's not on the

commissioner's head, regardless of what decisions are made. It is then

the responsibility of the Legislature and the total membership of the

Legislature, regardless of party. If we're going to have a bill before

us that pretends to protect human rights, including democratic rights

and the right to belong to or support any political party of one's

choice, it seems consistent to me that you elect these people to be

commissioners, that you avoid preferential treatment of a particular

political view, and that you make certain that your appointments don't

discriminate in favour of a particular point of view in terms of

friends of the minister or friends of the government. I think it's a

protection for both the minister and for those people who are likely to

bring their complaints before this commission that we look at this

amendment with some seriousness, not just reject it out of hand.

HON. MR. McCLELLAND: Mr. Chairman, frankly, I think this

amendment is out of order. I believe it completely negates the

section

in the bill, but having debated it this long, I think it's an academic

question. The government is not prepared to accept this amendment.

[4:00]

MR. CHAIRMAN: The Chair was allowing discussion to take place

because I feel this is a very important bill, and everybody should be

allowed to put their thoughts forward. But I would like to point out to

hon. members that the minister is in fact correct: the amendment is out

of order. For those members who might be interested, I would refer you

to the eighteenth edition of Sir Erskine May, page 508, under the

heading "Inadmissible Amendments." Under 1(

f) it states that when

something is beyond the scope of the clause under consideration.... It certainly is considered that that applies in this case.

MR. GABELMANN: I'm not going to argue the merits or demerits

of that particular ruling, nor am I going to challenge it. I took the

view that what this

section does is set up a commission. I was

suggesting that, rather than that commission being responsible to the

minister, it be responsible to the Legislature. Without arguing the

case and getting into debate about it, I'm not sure that May or whoever

it was, on page 55,022 or whatever, is really germane to this

particular issue.

Section 10 deals with the establishment of a body

that governs the legislation, in effect. We're arguing about whether

the body should be selected by and reporting to the Legislature or the

minister. I'm curious as to why that concept can't be adopted. Quite

frankly, the only reason I can perceive, Mr. Chairman, is that the

minister wants to have some political control over the direction of the

human rights council and is not prepared to have that council operate

with the independence that the ombudsman and the auditor-general have.

We disagree. We think that agency should have some independence. The

minister wants political control. There's a clear difference.

Amendment negatived.

Section 10 approved.

section 11.

(Mr. Strachan in the chair.]

MR. GABELMANN: I have an extensive amendment prepared, but

I'm not going to move it. I just want to make the case instead. The

problem with the complaint section,

section 11, primarily is that it's

too narrow in terms of those people who can file a complaint when a

discriminatory act is noted. For example, the person who is being

discriminated against may, for whatever reason, even though they would

perhaps be protected by the legislation, not want to file a complaint

for fear of retaliation, and would therefore want someone else to do it

on their behalf. That is not possible. A discriminatory act might take

place against someone from outside British Columbia who is not aware

that that is prohibited in this province. A bystander should be able to

file that particular complaint on their behalf, but under this

legislation it is not.... That seems to me to be a problem. What we're

trying to do with human rights legislation in general is prevent

discrimination in the future. Both the Code and this act....

Our approach to the issue is such that we're not talking about heavy

retribution for those people who are guilty of a discriminatory act.

We're talking about attempting to wipe out discrimination. If

discrimination occurs in a particular case and a complaint is not filed

by the person who is being discriminated against, a bystander, a friend

or neighbour — or whatever — can't understand why that provision is not

included in the legislation.

HON. MR. McCLELLAND: Mr. Chairman, I really apologize, but I didn't hear the main question.

MR. GABELMANN: Essentially — to prove that politicians can be

brief, Mr. Chairman — the issue is that someone who is not

discriminated against themselves, but who watches or witnesses a

discrimination, is not allowed to report and file that discriminatory

act. Why not?

HON. MR. McCLELLAND: Mr. Chairman, I think they can, provided they have the approval of the person or group of persons discriminated against.

MR. GABELMANN: Okay, that's why I need more time to set up the case. It may be that there is someone, first, who fears retaliation.

Interjection.

MR. GABELMANN: People do. Whether there could be or should be

retaliation for reporting something, they might fear it and therefore

not give their approval. Secondly, it may

[ Page 4583 ]

be a tourist or someone who is suddenly gone and they're reported....

Someone is denied access to a bar. Some American tourist comes up here,

isn't allowed into a bar — the person may be black — walks away saying:

"Well, that's British Columbia," and disappears. Why shouldn't someone

who is there and witnesses it be allowed to make that complaint?

HON. MR. McCLELLAND: Mr. Chairman, I appreciate that there

may be people who fear retaliation or whatever, but surely the member

would agree that sooner or later in the course of investigation that

person would have to....

Somebody is going to come before the council or before one of our people who

is investigating the complaint and say: "I saw somebody discriminate against

somebody on the street down there." Sooner or later that black or that

other person or that woman that's been discriminated against will have to

give evidence. You can't compel a person to give evidence, so I don't

see what you'd accomplish. There is a classic case, one that's been

going on for five years — probably six years now — and has to do with blacks

who were American tourists. Some of them were discriminated against in a premises

in Vancouver, and someone else laid the complaint, as it were. But sooner or

later those people had to come forward in order that the complaint could be

either proven or disproven. All we're saying is that if you can get concurrence

on the part of the person, then that complaint can be laid.

MR. HOWARD: Mr. Chairman, I would like permission to make an introduction.

Leave granted.

MR. HOWARD: Mr. Chairman and members, we have a rather unique

group of people visiting us today in the gallery from the community of

Kemano. To my knowledge, no one from that community and the school has

had the opportunity to visit the Legislature, so I'd like the House to

join me in welcoming the grade 7 and 8 students along with Mr. Ken

Allison and Miss Debbie McArthur.

Sections 11 and 12 approved.

section 13.

HON. MR. McCLELLAND: Mr. Chairman, there has been brought to

our attention the problem that someone who was unintentionally

discriminated against may not be able to get before the council. I'm

told that that has not been the case, but I accept that we should make

it very clear that a person must be able to get into the system

regardless of whether or not there was an intentional discrimination.

So I propose to amend

section 13 by adding the following as subsection

1.1: "The council shall not decline to proceed with an investigation by

reason only that there was no intent by the person against whom the

complaint was made to contravene this act."

On the amendment.

MR. GABELMANN: People sometimes suggest that there are too

many lawyers in politics. I usually agree. This is a moment when I wish

I was a lawyer. I am not at all clear, having had five to ten minutes

to read it and try to think about it, at the same time trying to deal

with the other sections and everything else that's going on.

MRS. JOHNSTON: Trust us.

MR. GABELMANN: That requires no further comment, does it?

I appreciate that the question of intent.... And I'm doing this, Mr.

Chairman, because I don't have any alternative. If I don't get up and

do this, it's gone and I don't get another opportunity. Without any

advice or any time to properly consider it or think about it, what this

section does is to tell the council that they have to proceed with an

investigation and go through the process that's delineated in the

legislation. Even if they're told by the person who is alleged to have

discriminated that there was no intent, that it was totally

unintentional, they still have to proceed. But does this deal with what

seems to me to be the fundamental issue? That is, can they determine

that...? Mr. Chairman, with all those caveats I've just made, I want to

ask if this allows the council to say that in fact an unintentional

discriminatory act or activity was in fact discrimination. What the

amendment says is simply that they have to proceed when it's

unintentional. There's no clarification of our original concern, which

was that unintentional discrimination may not be precluded.

HON. MR. McCLELLAND: As far as I'm concerned, the answer to

the question is yes, it does allow the council to make that

determination. The problem that we wanted to make sure was covered —

and it's one that seemed to be raised more often than any other — was

that under the terms of the bill the council could refuse to

investigate a case if no intent was shown. We don't want that to

happen. We believe that intentional discrimination is then covered, and

by getting it into the system we expect.... In most cases of

unintentional discrimination we wouldn't expect, as you have pointed

out, that anybody wants retribution or anything like that; they want

the thing to stop. Now that we've got it in the system, I expect that

in most cases it will be stopped by conciliation between the two

parties, rather than any other action being necessary. We hope that's

the way most of them will go, and I believe it will be.

MR. GABELMANN: Just so I have it clearly in my mind and the

record is clear, what we're doing through this amendment is saying that

unintentional discriminatory activity can be investigated and a

decision made that unintentional discrimination occurred, and whatever

remedies will be proceeded with can occur.

HON. MR. McCLELLAND: As far as I'm concerned, yes.

Amendment approved.

Section 13 as amended approved.

Sections 14 and 15 approved.

section 16.

MR. GABELMANN: They're going by so fast, Mr. Chairman.

[ Page 4584 ]

section 16, I have an amendment to propose. Very simply, by

deleting subsection 16(1) and subsection 16(3) and substituting the

following three. We would have to renumber these, Mr. Chairman, and I

haven't done that in the copy I've given to you. By deleting subsection

(1), subsection (2) would become (1), and (3) would become (2). Does

that make sense to you?

HON. MR. McCLELLAND: I thought you said you weren't a lawyer.

MR. GABELMANN: I should quit right now if I sound like one.

Let me just take a second on this, Mr. Chairman. The others would be

renumbered accordingly. However, I don't think it's going to pass so

I'm not going to worry too much about the legal niceties.

Subsection (3) would read: "The persons who are entitled to be

parties to proceedings before a board of inquiry are (

a) the

commission, which shall have the carriage of the complaint, (

b) the

complainant, (

c) any person whom the commission alleges has infringed

the right, (

d) at the discretion of the board of inquiry, any other

person who has a genuine interest in the subject matter of the

complaint."

Deletion of subsection (1), taken together with other changes that I tried to make but didn't make....

I'm having some difficulty tying them together when they have to be

viewed as a package; when you lose some, the others take on less

meaning. But if some previous amendments had passed, it would mean that

the commission — or in this case the council — would appoint boards of

inquiry, rather than the minister. So there's the point. We want boards

of inquiry under the legislation to be appointed by the commission. I

don't have any objections at all to having a list of people — who could

be chosen by the council or commission — prepared by the

Lieutenant-Governor-in-Council, but in terms of the appointment of the

board, I would argue that the commission or council should have that

right.

In terms of subsection (3), basically what we're trying to do is

broaden the opportunity for individuals who have an interest in a

particular case to appear or to participate in the proceedings

following a complaint at the board of inquiry level.

On the amendment.

[4:15]

HON. MR. McCLELLAND: I hope there won't be very many boards

of inquiry, because the changes we have made between this bill and Bill

27 allow the council much more opportunity to settle complaints, rather

than have to refer them unsettled to the minister for a board of

inquiry. Simply from the point of view of delay, I don't want a lot of

cases coming across my desk for decision. The opportunity for

settlement will be much better. I don't think there will be very many

boards of inquiry in the future. I think that the settlement will come

a lot more quickly as a result of that, because boards of inquiry have

proved as well to be very lengthy proceedings all too often. So for

that reason I don't think the member needs to have too much concern.

Nevertheless, I think there should be an avenue for the board itself in

exceptional circumstances to say that the case has not been able to be

settled and there's a proper reason for it to come to the minister's

desk, Mr. Chairman.

On the matter of the other part of the amendment that the member is

proposing, I think rather than having the other persons with a genuine

interest, which I believe is covered reasonably well in the bill....

There may be some concern about whether or not legal assistance can be

made available from the ministry, either through the council or the

commission or however. In my second reading remarks, Mr. Chairman, if

the member will recall, I assured the member that the practice will

remain the same as it has in the past and that the Attorney-General's

ministry, in cases at boards of inquiry where it proves to be

necessary, will be able to represent the complainant.

Amendment negatived.

Section 16 approved.

section 17.

MR. GABELMANN: Basically, dealing with the disposition of

complaints, I first of all wanted to say no, I'm not proposing an

amendment. I thought about it and had prepared one, but I'm not going

to move it. I'll tell you why: I have some.... As I indicated before,

earlier this afternoon, I don't see human rights legislation as being

retributive. I shouldn't use those legalistic words. I'm going to fall

into that disease.

We're not looking for punishment as much as we're looking for an end

to discriminatory activity. That's got to be the underlying philosophy.

But I can't let the issue go that the fines have been standardized at

the $2,000 level, which for an individual is quite significant. That's

a heavy-duty penalty for an individual and is perhaps appropriate, but

it is sure Mickey Mouse if it comes to MacMillan Bloedel. That's petty

change on a bad day.

While I'm walking a fine line here in the sense that I don't think

we should be punishing overduly, $2,000 is not going to be noticed by

large corporations, but it will be noticed extremely well by an

individual. It seems to me that the concept in the Code of having

different levels — in the Code I think it's $5,000 and $2,000 — is an

appropriate one. When a group or an organization or a company or a

large institution discriminates, then they should be dealt with

somewhat differently from how an individual is dealt with. So I guess

I'm really inquiring as to why the $2,000 figure is across the board. I

don't want to have my concern misconstrued. I'm not arguing for putting

people in jail and fining them massive amounts. I'm just arguing about

the discrimination in this as opposed to the difference between an

individual and a corporation.

HON. MR. McCLELLAND: I guess the matter of the dollars — and I don't know which dollars you pick....

We've chosen $2,000 because $2,000 is the amount of money under the

Offence Act, and that generally covers almost every other area. But we

felt we should highlight the $2,000 rather than just say that this is

an offence, because there have sometimes been misunderstandings that

there are no fines if you just do that. In the Code it said $1,000 for

an individual, $5,000 if you're a corporation, trade union or whatever

— and I suppose $5,000 wouldn't be much to a very large corporation

either. So we just chose $2,000 because it has a similarity with other

government acts.

[ Page 4585 ]

Section 17 approved.

section 18.

MR. GABELMANN: I believe the Chair has a copy of this brief amendment. It's to delete

section 18 and substitute the following:

"A member of the commission or any person employed in the

administration of this act shall not be required in any proceeding or otherwise,

except in a judicial review respecting a complaint under this act or in the

course of an investigation by the ombudsman, (

a) to give evidence, or (

b) to

produce records relating to information obtained or a communication received

in the process of conciliation for the purpose of endeavouring to effect a settlement

pursuant to this act, but nothing in the act shall restrict the competency or

compellability of such a person in any proceedings with respect to any other

evidence."

The first thing about this amendment is that it proves, by the nature of the

language, that I do know a lawyer. The second thing I might say, to take a light-hearted

moment about this is that I know how my friend and colleague Alexa McDonough

feels in the Nova Scotia legislature when she has to attempt to conduct the

NDP caucus business all by herself on the floor of the House. I'm delighted

to be in her company.

To go back to

section 18 and my amendment, there are a number of

concerns. But let me deal with one — the one that I think is most

significant. It appears to me that the ombudsman can be prevented from

investigating complaints concerning the council or the conduct of the

minister in enforcing the act. Without saying anything more, I wonder

what the intention of the minister is in drafting this bill in respect

of the ombudsman's right in terms of the council and the minister's

enforcement of the legislation.

HON. MR. McCLELLAND: I don't think we're precluding —

providing that the Ombudsman Act allows him to, and I think it does —

his opportunity. We are saying that we don't want him to try the whole

thing again and bring forward evidence, maybe new evidence, and some

evidence which may not have been taken in public — and that could be a

serious problem. That's really the major reason for this particular

section.

Amendment negatived.

Sections 18 to 28 inclusive approved.

MR. GABELMANN: Mr. Chairman, I believe this would be the

appropriate time for me to try an amendment, which I would like to read

to the House. Before I speak to it, I'll await the judgment of the

Chair, as I think we've had some discussion about this.

MR. REE: Where are we?

MR. GABELMANN: We're between the final

section and the title.

MR. REE: That hasn't been called.

MR. GABELMANN: No, we're not dealing with the title. Mr. Chairman, I'd like to move that we delete the enactment clause and substitute.... I want to, by moving this amendment, include a

preamble to the bill which would read as follows.

"Whereas recognition of the inherent dignity and the equal

and inalienable rights of all members of the human family is the foundation

of freedom, justice and peace in the world, and is in accord with the Universal

Declaration of Human Rights and with the International Covenant on Civil and

Political Rights, to which this province has committed itself; and

whereas it

is a public policy of British Columbia to recognize the dignity and worth of

every person, to provide for equal rights and opportunities to all persons and

to create a climate of understanding and mutual respect for the dignity and

worth of each person; and

whereas the Charter of Rights and Freedoms recognizes

the right of every individual to equality before and under the law and to the

equal protection and equal benefit of the law without discrimination; therefore

Her Majesty by and with the advice and consent of the Legislative Assembly of

the Province of British Columbia enacts as follows.... "

MR. CHAIRMAN: I will advise the member, citing Sir Erskine

May's 16th edition, page 564, that where a bill as introduced does not

contain a

preamble, it is not competent for the committee to introduce

one. Therefore the amendment as proposed by the member for North Island

must fail.

MR. GABELMANN: Mr. Chairman, may I challenge that ruling?

The House resumed; Mr. Speaker in the chair.

MR. CHAIRMAN: Mr. Speaker, during committee on Bill 11, your

Chairman ruled that the committee could not add a

preamble to the bill,

and the ruling of the Chair has been challenged.

MR. NICOLSON: On a point of order. Mr. Speaker, before we

vote on this, I would like to draw to the attention of the House what

is stated in May's nineteenth edition, at page 465: "The purpose...."

[4:30]

MR. SPEAKER: Order, please. Hon. member, at this stage the Chair is not capable of hearing argument which was brought forward in committee.

MR. NICOLSON: Mr. Speaker, we are once again in danger of

setting an untenable precedent, without ever having had recourse to

reading the circumstances under which such a ruling ever got into

Erskine May. I have the Hansard

transcript, for Mr. Speaker and for the edification of the House, in

which the Speaker apologizes — back in 1913, I believe it was — when

this whole thing came about. In this decision, once again, we are sort

of blindly following a very terse, brief — thank you for your

tolerance, Mr. Speaker — and cryptic comment in Erskine May, which is

founded on actual actions that took place in the House of Commons in

Great Britain.

[ Page 4586 ]

The circumstances are not at all equal or identical to what we have here today.

MR. SPEAKER: As all hon. members are aware, matters that

arise in committee must be dealt with in committee. While the

observations of the member may have some place in debate,

unfortunately, hon. member, that debate must take place in committee

and before the Chairman has reported.

Mr. Chairman's ruling sustained on the following division:

YEAS — 25

Waterland

Brummet

Rogers

Schroeder

McClelland

Heinrich

Ritchie

Michael

Pelton

Johnston

R. Fraser

Strachan

Chabot

Nielsen

Smith

Phillips

Davis

Kempf

Mowat

Veitch

Segarty

Ree

Parks

Reid

Reynolds

NAYS — 17

Macdonald

Howard

Cocke

Dailly

Stupich

Lauk

Nicolson

Sanford

Gabelmann

Skelly

D'Arcy

Lockstead

Wallace

Mitchell

Passarell

Rose

Blencoe

Division ordered to be recorded in the Journals of the House.

The House in committee on Bill 11; Mr. Strachan in the chair.

Title approved.

HON. MR. McCLELLAND: Mr. Chairman, I move that the committee rise and report the bill complete with amendments.

Motion approved.

The House resumed; Mr. Speaker in the chair.

Bill 11, Human Rights Act, reported complete with amendments to be considered at the next sitting of the House after today.

HON. MR. NIELSEN: Second reading of Bill 24, Mr. Speaker.

HOME OWNER GRANT AMENDMENT

ACT (No. 2), 1984

HON. MR. RITCHIE: Mr. Speaker, in introducing this bill for second reading I have some comments I wish to make.

I am pleased to introduce a major amendment to the Home Owner Grant Act. These

amendments widen the eligibility provisions of the existing act, and this will

make more British Columbians, including civilian war veterans, eligible for

the grants.

It should be made clear to the House that the Home Owner Grant

Amendment Act is another move in the government's program of property

tax reform. Last year we began by introducing the variable tax rate

system, first in the municipal

section and then in all sectors. Now we

are advancing our reform program by improving this important program of

property tax relief. We are extending new homeowner grant benefits to

the public at a time in our economic recovery when it is most needed.

The central thrust of this legislation is toward providing a watertight

definition of the type of residential tenure that qualifies for grants.

In theory eligibility is restricted to owners, but in law and in

administrative practice the borders between owning, leasing and renting

can sometimes be obscured.

Three difficult eligibility questions associated with tenure have

recently arisen. The first situation deals with land cooperatives. It

occurs when several persons jointly purchase a parcel of land and build

individual, detached residences on it. The present wording of the act

does not cover eligibility for this type of tenure, although apartment

cooperatives, which are substantially similar, do possess that

eligibility. The second situation typically occurs when a company owns

a single parcel of land and leases individual portions to its employees

for housing purposes. This practice is often followed by resource

companies, such as Westar mines in Sparwood.

Until this year it was customary that homeowners in this secondary

category received homeowner grants, but recent, and legally correct,

changes by the Assessment Authority will this year deny those people

grants to the same homeowners, unless the Home Owner Grant Act is

changed.

The third tenure situation involves 99-year leased dwellings. In the

past grants were given only when whole apartment buildings were leased

on a 99-year basis. If only a single apartment in a building was

leased, then grants were denied. Clearly this was unfair, and the

proposed legislation addresses this problem.

I am particularly happy that this legislation extends new benefits

to war veterans. The service and sacrifice made by our veterans and

their families deserves to be remembered and recognized. Under this

legislation every family receiving a Canadian war allowance, whether

for military or civilian war service, will be entitled to the maximum

grant of up to $630.

Because the homeowner grant is being opened up to accommodate these

major changes to eligibility, the opportunity has been taken to make

further minor technical changes. These include modification of late

claims, prosecution rules and the correction of misleading references.

I am very pleased to bring this forward, and I will welcome any

comments that members may wish to make in respect to this very fair,

long-awaited and welcome legislation.

[4:45]

MR. BLENCOE: I am pleased to state in the House today that

the opposition will be supporting this legislation. It is indeed

generally a good piece of legislation for which we have been waiting a

long time. As a matter of fact, my predecessor, Charles Barber, worked

on this 99-year lease issue for a long time, in terms of homeowner

grants being granted to those who occupy 99-year lease apartments; I

think he started that process at least three or four years ago.

[ Page 4587 ]

We are pleased, certainly in Victoria, because

there are a number of buildings with 99-year leases, and homeowner

eligibility will certainly be welcomed. The minister is to be

congratulated on that particular issue.

We certainly welcome the very positive move that government has made

to include those who reside in cooperatives. It's a very necessary

piece of legislation and, I think, a good recognition for the

cooperative movement that they are homes and homeowners. I know that

those people living in cooperatives and the cooperative associations

will welcome this piece of legislation.

I'm also very pleased that the government is doing something for war

veterans. I think that is welcome. I have something specific to say: it

will definitely be welcome in my riding. All in all, we welcome this

legislation. It's been a long time coming. I thank the government for

that.

Very briefly in passing, I would like to.... It doesn't reflect on

this minister, but it has a lot to do with the 99-year lease problem.

Maybe the minister can bring it up with the Minister of Consumer and

Corporate Affairs (Hon. Mr. Hewitt). There is dual jurisdiction here.

Now that we've taken care of the homeowner grant problem, there are a

number of other issues that have to be taken care of in the 99-year

leases. They don't come under anybody's jurisdiction in terms of

regulations. The rentalsman, for instance, had no jurisdiction in their

disputes. There are all sorts of problems dealing with payment of

maintenance and getting the statements of costs. I've written to the

Minister of Consumer and Corporate Affairs a number of times about this

particular issue. It's my understanding that it's under review. Suffice

to say, Mr. Speaker, that we have worked out the homeowner grant

problem. I am hoping we can work out the other problems of

99-year-lease buildings. This whole question of leasehold is relatively....

It's not a new idea, but in terms of numbers, they've certainly grown

over the last few years. Consequently it means that the government has

to look at the whole area. I know it takes time to introduce

appropriate legislation, but there are other areas in 99-year-lease

buildings that pertain more to the Ministry of Consumer and Corporate

Affairs. I'm hoping we will see legislation dealing with that in the

near future.

Generally we support the bill, and we are pleased to see the various sections and the direction of this government.

MR. SEGARTY: I won't take too long, Mr. Speaker. On behalf of

the 47 residents of Sparwood who were ineligible to receive the grant

because of changes in the Assessment Authority Act, I want to thank the

Minister of Municipal Affairs for bringing forward this piece of

legislation and the amendments to the act. I've just got one question

for him in terms of it. Will those 47 people be eligible for the grant

in this tax year? On behalf of all of them, thanks very much for

bringing it forward. I know you've worked extremely hard on it.

MR. REE: Like others, I fully support this piece of

legislation, particularly the homeowner's grant being eligible to

99-year leaseholders. In my constituency of North Vancouver–Capilano we

have a number of buildings where this situation has arisen. People have

owned these strata title properties under 99-year-lease arrangements

for some number of years. They pay the same price for the accommodation

as for any other strata title or private home. I think they should be

entitled to the homeowner's grant. I think the minister is to be

commended for bringing it in at this time. I know I've been speaking to

the minister for some time about it and encouraging this type of

legislation. I think he's to be commended, and on behalf of my

constituents I thank him.

MR. MITCHELL: A lot of area has been covered, but there are

two areas about which I have spoken on other occasions in this House

which have been missed. I would like the government to give serious

consideration to them. Basically it is now recognizing people who for

one reason or anoth