1998 Legislative Session: 3rd Session, 36th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, MAY 26, 1998

Afternoon

Volume 10, Number 4

[ Page 8121 ]

The House met at 2:04 p.m.

F. Gingell: Joining us in the gallery today are 60 grade 11 students from my favourite school, South Delta Senior Secondary School. I think they're up there in the gallery. I ask all members to join me in making them most welcome.

C. Clark: Today in the precincts we have a group of 60 grade 4 and 5 students from Queen of All Saints School in my constituency of Coquitlam. They are accompanied by their teacher, Miss J. Ferreira. I hope the House will make them welcome.

Hon. A. Petter: Well, it must be school day today because there are 22 students in the precincts from my constituency of Saanich South. They are a grade 11 class from Pacific Christian School, along with their teacher, Mr. Reems, as well as a number of accompanying adults. I ask the House to make them very welcome.

Hon. D. Lovick: It is my pleasure today to introduce four people visiting the precincts who, I understand, have been carrying out meetings with a number of different individuals. I had the pleasure of meeting earlier with Philip Hochstein, Suromitra Sanatani, Mark Startup and Jerry Lampert -- all of whom, I'm sure, are well known to this chamber as leaders of the British Columbia business community. I would therefore ask all of my colleagues to please join me in making them most welcome.

Hon. M. Farnworth: Visiting us today in the House is Bill Morrison of the International Brotherhood of Boilermakers, Local 191, with whom I will be meeting later on this afternoon. I ask the House to please make him welcome.

And one of the many cleanup duties that I have to do is bring birthday greetings to two members of the fourth estate. I don't know if the House is going to believe who they are, but they're both celebrating identical birthdays today. Would the House please wish Vaughn Palmer and Mike Smyth a happy birthday.

C. Hansen: I want to join the minister in welcoming the delegation that was meeting with various groups today. I think it's important to recognize that it is probably the first time that the Coalition of B.C. Businesses and the Business Council of B.C. have come together to meet with reps to bring forward one strong message to government. In addition to the four individuals that the minister mentioned, I would like to welcome Marcia Smith, who is also part of that delegation.

G. Bowbrick: Joining us in the precincts today are 44 grade 11 students from the Sigma program at New Westminster Secondary School, along with their teacher, Ms. Martens, and several adults. I ask all my colleagues in the House to please join me in making them welcome.

Hon. P. Priddy: In the gallery today there are a number of people who are very strong advocates for seniors in the South Asian community, and I'd like to introduce them. I ask the House to make welcome Harbans Singh Pawar, Balwinder Singh Chahal, Mewa Singh, Mr. Harbans Singh Kundi, Piara Singh Dhillon, Balwant Sangara and Gurcharan Singh Gill. I ask the House to please make them welcome.

Hon. D. Zirnhelt: Visiting us from Victoria is a nephew of mine, Rob Ferrier, and his friend Maria Bucar. Please make them welcome.

J. Sawicki: I have three guests in the galleries today. The first is Rose Farina, who is a community activist in Burnaby and, among other things, is currently vice-president of the Burnaby Arts Council. In fact it was at a fundraising gala that I met Rose and our other two guests, John and Jean Brown, who are visiting here from Stockton-on-Tees in northern England. I understand that our guests met each other on a cruise and that they are now good friends. I want the House to please welcome all three of them to the Legislature.

G. Janssen: Joining us today from my old alma mater, the Alberni District Secondary School, are 18 grade 11 social studies students and their teacher, Frank Holm. I ask the House to make them welcome.

L. Reid: I rise today to pay tribute to a young man in my riding who recently lost his life: Christopher Kucher. His is a loss keenly felt for all time by family, friends and community. He possessed a rare spirit and enormous human warmth. Christopher, you will be missed this day and every day.

The Speaker: I have an introduction as well. In the gallery today are some very good friends of the Clerk of Committees. They are Dr. Walter Schlenz and his wife Lotte from Vienna, Austria. They are here on semi-official business and will be touring British Columbia. I ask all members of the House to give them a warm welcome.

B. Penner: I have the privilege of making one final introduction. Just entering the gallery now is my former grade 7 schoolteacher, Mr. Adrian Stoutjesdyk, who is here with 12 grade 12 students from Mount Cheam Christian School and one parent, Mr. Bill Klop of Agassiz. I ask that the House please make them welcome.

Introduction of Bills

VANCOUVER FOUNDATION

AMENDMENT ACT, 1998

T. Stevenson presented a bill intituled Vancouver Foundation Amendment Act, 1998.

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

Motion approved.

T. Stevenson: The primary objective of the proposed amendments to the Vancouver Foundation Act is to permit the board of directors to distribute a prudent portion of the net appreciation of the funds under administration. Presently the act permits the board of directors to distribute at its discretion only the income from the fund. The term "income," at law, is limited generally to interest and dividends and excludes capital gains. As a result of the present economic environment, where interest rates are low, capital markets are high and inflation is low, there has been a decline in funds available for distribution to community services in this province.

The proposed change to the act will permit the board of directors to distribute a prudent portion of the total net appreciation, with the immediate result of more funds being available to the community services which the foundation supports. The foundation will have the responsibility of managing distribution so as to not impair the value of the

[ Page 8122 ]

capital and will respect the wishes of those contributors whose philosophy may be to distribute only income, essentially as it has been done historically. Provisions are introduced to allow the board of directors to fulfil those wishes.

I move that the bill be referred to the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills.

Bill Pr401 introduced, read a first time and referred to the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills.

Oral Questions

B.C. HYDRO CHAIR'S BUSINESS INTERESTS

AND RAIWIND POWER PROJECT INQUIRY

C. Clark: After two years and over a million dollars, Brian Smith has still been unable to answer some very fundamental questions. We still don't know where the money went. We still don't know what role Ali Mahmood played in this sordid scandal, and we still don't know if illegal kickbacks or commissions were paid in order to get this project going. If after two years he has been unable to answer these questions, why should we have any confidence that he even wants to get to the bottom of this sorry, sordid, scandalous

chapter in British Columbia politics?

Hon. M. Farnworth: I think that the hon. member may want to tone down her question -- her attack -- on a former hon. member of this House and a respected Attorney General of this province, and repeat those remarks outside this House.

The Speaker: Proceed, hon. member.

Hon. M. Farnworth: Let me be clear. There have been no bribes paid by B.C. Hydro in any way, shape or form. The Smith report was thorough and exhaustive. There was no taxpayers' money paid to Ali Mahmood. The $1 million that the member talks about was a loan from Mr. Laxton to Mr. Mahmood and was not disclosed to the government, the board or anybody else. The fact of the matter is that the RCMP are investigating that, our special prosecutor is investigating that, and the board of B.C. Hydro and Mr. Smith are fully cooperating.

[2:15]

The Speaker: On her first supplementary, the member for Port Moody-Burnaby Mountain.

C. Clark: My question is for the Minister of Transportation and Highways. Can he tell us how many times Mr. Smith personally met with the staff at the Ministry of Transportation and Highways to discuss the ATS contract and photo radar?

Hon. H. Lali: I'll take the question on notice.

G. Farrell-Collins: On August 7, 1996, in this House, a member of the opposition asked the former Minister of Transportation and Highways if Brian Smith had ever personally been involved with her ministry on behalf of ATS Canada, the photo radar company. The minister's answer was no. Well, the B.C. Liberal caucus has recently obtained documents that show that four days prior to the 1996 election, Mr. Smith, as a director of ATS Canada, not only met with her ministry staff but also led the crisis negotiations because the whole project was at risk of cancellation.

My question is for the Minister of Employment and Investment. How can he be so certain about his statements in this House? How can he be so sure that Mr. Smith has got to the bottom of this, when on the one hand he's personally leading negotiations with the government for a $1 million contract on ATS and on the other hand -- at the same time -- he's investigating the actions of the Premier?

Hon. M. Farnworth: I want to quote from a letter from the counsel to the Smith inquiry, Mr. Chris Considine, QC. He said:

"Based upon the available evidence, the review inquiry found no secret fees, commissions, procurement fees or other improper payments by B.C. Hydro, BCHIL, IPC or any other companies in which they had an interest, including the project operating company, SEPCOL. In addition, there is no evidence that such fees or commissions were paid by or to any director, officer, employee or agent of any of those companies."

I have no reason to doubt that Mr. Smith and Mr. Considine or any other member of the commission have acted with anything but the utmost propriety.

The Speaker: On his first supplementary, the Opposition House Leader.

G. Farrell-Collins: The reason they can't find anything is because Mr. Mahmood, the guy behind the project, has refused to be cooperative, has refused to testify, and they don't know where that money went. It's clear from the documents we've obtained that Mr. Smith was intimately and personally involved in the photo radar negotiations. The notes from the May 24 meeting state: "During the caucus break, Mr. Smith asked for a word with Vince Collins, and when we reconvened the meeting, Mr. Brian Smith does all the talking for ATS and follows carefully crafted notes." Can the minister responsible for B.C.

Hydro tell us if he thinks it's appropriate conduct for the chair of B.C. Hydro to be involved directly and personally in negotiations where he has a personal financial stake, while at the same time investigating the actions of that Premier?

Hon. M. Farnworth: Mr. Smith has done nothing wrong and in fact has performed the duties that he set out to do. He prepared a report for the government which was thorough in its assessment of what went on during the Raiwind project. The recommendations of the report have been implemented. The issue is not B.C. Hydro; the issue is not Mr. Smith. The issue is what's happening in Pakistan. That's what the opposition needs to realize.

The Speaker: On his second supplementary, the Opposition House Leader.

G. Farrell-Collins: What's happening in Pakistan is that the people of British Columbia are about to lose $10 million because of the incompetence of that Premier. That's what's taking place in Pakistan. Can the Premier tell us if he was aware that Brian Smith was personally involved with ATS and the negotiations at the time he appointed him to do the investigation?

Hon. G. Clark: It always amazes me that the Liberal opposition would side with . . . .

Interjections.

[ Page 8123 ]

The Speaker: Hon. members . . . .

Interjections.

The Speaker: Hon. members, you will come to order. The question was asked and the answer should be listened to in the same vein.

Hon. G. Clark: Why would they side with the government of Pakistan, who right now are torturing people and are involved in a political campaign that anybody who reads a newspaper knows about? Why would they side with the government of Pakistan versus people like Chris Considine and Brian Smith . . .

Interjections.

The Speaker: Order.

Hon. G. Clark: . . . with respect to this question? Not a penny of B.C. Hydro money has gone, in any fashion, to any bribes or corruption activities. The Royal Bank has audited this on two separate occasions. SNC-Lavalin -- an outstanding large, private Canadian company -- is involved. Many other international companies are involved. If it's the case with B.C. Hydro, then every single one of these companies is, de facto, corrupt. I ask the members to consider that in their discussions -- that rather than siding with . . .

The Speaker: Thank you, Mr. Premier.

Hon. G. Clark: . . . the current government of Pakistan, they recognize the facts in the question.

The Speaker: Wind up.

Hon. G. Clark: Hon. Speaker, I'm not aware of . . . . I can't answer the question that the member raised.

SURGERY WAIT-LISTS

AT NANAIMO HOSPITAL

P. Reitsma: A change of subject. My question is to the Minister of Health. The total average waiting time for elective surgery provincewide is seven weeks, but it's almost 14 weeks for the Nanaimo Regional General Hospital. Local doctors have expressed great concern about unacceptable waiting lists for simple procedures such as lung function studies, heart scans, cataract procedures, and knee and hip surgery. Can the minister tell the people and patients of the mid-Island region what immediate action will be taken to reduce those waiting lists?

Hon. P. Priddy: The first thing is the fact that there is about an additional $16 million in this year's budget to reduce wait times. That is not counting the $8.5 million to reduce cardiac procedure wait times; that's $16 million on top of that, which is available immediately. Obviously the Nanaimo Hospital will have access to that.

I'm not sure I could hear the whole question, but I think the member also mentioned orthopedic surgery. As a result of the good work done by the cardiac panel -- we acted on all of their recommendations -- we've established an orthopedic panel which will make recommendations to us, which in turn, I believe, will take action to reduce the orthopedic wait time as well.

The Speaker: The hon. member for Parksville-Qualicum, first supplementary.

P. Reitsma: Prostate cancer cases are sent to Seattle for treatment; premature babies are frequently sent to Seattle and Calgary for treatment. Could the minister tell the House why this is happening and what the additional costs are?

Hon. P. Priddy: The issue of prostate cancer cases being sent to Seattle for treatment is actually one that I will have to get back to him on, because I don't know. What I do know is that there has been additional treatment money for cancer centres in order to reduce the wait time for any kind of cancer treatment, including at the Victoria cancer centre. So I'm not sure why that is happening in Nanaimo. For premature babies, we have an excellent facility in Vancouver at the Children and Women's Health Centre. I do not know at this stage why we would be sending premature babies to Alberta, particularly from that location. But I will look into that.

It's interesting that in Alberta, which has consistently reduced health care budgets over the last six or seven years and closed hospitals . . . . In this province we have extended that every year . . .

The Speaker: Thank you, minister.

Hon. P. Priddy: . . . so I fail to understand why that is happening. But I'll research it for the member.

B.C. HYDRO CHAIR'S BUSINESS INTERESTS

AND RAIWIND POWER PROJECT INQUIRY

M. de Jong: Hon. Speaker, the documents the official opposition received include a note to file from Vince Collins, the former Deputy Minister of Transportation. It states: "During the negotiations with ATS that transpired in the fall of 1995, Brian Smith attended several sessions. He was initially described in these sessions as the Canadian counsel for ATS." Could the Premier explain to the House how it was that of all the people that might have been qualified to conduct an investigation into this Hydrogate scandal, he happened to pick the one person whose company stood to lose millions of dollars if negotiations with his government on photo radar happened to go sideways?

Hon. G. Clark: I find this line of questioning offensive. I want to know what the members are alleging here. Brian Smith, QC, former Attorney General of British Columbia, was a lawyer who had a variety of clients. When I asked him to chair B.C. Hydro and to further investigate the matters around Raiwind, I did not ask him for a list of his clients, and I say that categorically. I didn't know who his clients were; I didn't inquire into them. Secondly, all of the evidence presented at Brian Smith's inquiry was under oath.

Are the members suggesting that Chris Considine, Neil de Gelder, Brian Smith and others somehow compromised their investigations, because he had a client that was also doing business with the government? If that's their allegation, then I categorically reject it and I find it offensive.

The Speaker: First supplementary, the member for Matsqui.

M. de Jong: Well, this is not an investigation of who Mr. Smith's clients were. He was a director of the company, ATS, which is a very different thing.

[ Page 8124 ]

For my question, I want to refer back to August 7, 1996, when I asked the then Minister of Transportation if Mr. Smith had ever met with government officials on photo radar. She said: "There have been no representations from Mr. Smith to myself, and no representations to anybody that I know of in government with regard to ATS." Yet exactly two days later, miraculously a memo -- a self-serving memo -- ends up on the file outlining Mr. Smith's involvement in the ATS negotiations. My question to the former Minister of Transportation . . .

The Speaker: Hon. member.

M. de Jong: . . . is: why did she mislead the House . . .

The Speaker: Hon. member.

M. de Jong: . . . and why in the intervening two years has she not taken an opportunity to correct the misstatements, the mistruths, that were delivered in this House on August 7, 1996?

The Speaker: Hon. member, that question is out of order. Everyone knows that former responsibilities of ministers are not in their purview now. The question is out of order.

Interjections.

The Speaker: Hon. members, there is someone who would like to ask a question. We'd like some order so that can happen. I recognize the member for Richmond East.

PUBLIC CONFIDENCE IN

LEAKY-CONDO COMMISSIONER

L. Reid: My question is to the Minister of Municipal Affairs. She will know that we took a very dim view of the appointment of Mr. Barrett to lead up the leaky condo commission. It would appear that we are not alone in our disdain. Only 34 percent of British Columbians believe that he can actually return any kind of reasonable report. Would this minister get to her feet and defend his credible judgment -- in her view -- that would allow him to bring forward a report that is in the public interest?

Hon. J. Kwan: I ask the members opposite not to judge the Barrett report or the work of the commissioner by virtue of who he is, but rather to judge the merit of the report by the recommendations that he will come forward with at the end of the process. It is important from the government's point of view and, I understand, from the opposition's point of view as well . . .

The Speaker: Please wind up your remarks. The time is gone.

Hon. J. Kwan: . . . that we deal with the issue of leaky condos in terms of the problems that are faced by the public today.

The Speaker: I recognize the member for Matsqui.

M. de Jong: I rise to reserve my right to raise a point of privilege with respect to the Minister for Children and Families.

The Speaker: All right. The member reserves the right to raise a point later. Now I recognize the Government House Leader.

[2:30]

Hon. J. MacPhail: In Committee A, I call Committee of Supply. For the information of the members, we'll be debating the estimates of the Ministry of Transportation and Highways and then the Ministry of Small Business, Tourism and Culture.

In this chamber, I call Committee of the Whole to debate Bill 14.

WORKERS COMPENSATION

(OCCUPATIONAL HEALTH AND SAFETY)

AMENDMENT ACT, 1998

(continued)

The House in committee on Bill 14; W. Hartley in the chair.

On the first amendment to

section 15,

section 115.

Hon. D. Lovick: Mr. Chairman, you will recall that earlier we stood down a number of different sections, those sections which had amendments tabled by the opposition. I gave them an undertaking that I would look carefully at those amendments, that I would indeed discuss them with legislative counsel and report accordingly. I am here now to do that.

Because our issue of amendments and what might be embraced in amendments came via a discussion, in fact, about a particular instance under

section 115 -- namely, the driver of a delivery truck -- I want to deal, if I may, with the delivery truck question first, which was originally advanced by the member for Shuswap. We'll deal with that first and then, perhaps, give the opposition an opportunity to pose further questions arising from that explanation. From there I will go on to the larger question about the amendment, if that's acceptable.

Let me start, then, by dealing with the delivery truck incident. This, as I say, is based on discussion with legislative counsel. The member raised a hypothetical question with respect to a delivery truck driver at an employer's workplace who, it is alleged, carelessly backed up and ran over one of the other workers. The member asked whether the employer would be liable because this delivery truck driver was at the employer's workplace. I want to start by cautioning members that the extent of the liability would be entirely dependent on the particulars of the situation.

In other words, I can't give a categorical sort of answer, and I think the member knows that. An investigation would likely be necessary to determine the causes, etc., of such an accident. While it is generally true that the employer would have some obligations, the extent of the obligation is really the issue. I should also point out that the employer would have a defence of due diligence available to him or her. To put it bluntly, in a situation like this the employer cannot prevent the other person from doing something stupid and careless.

While the employer has some obligations, however, the driver also has obligations to take reasonable care. The general common law with respect to negligence calls for individuals to take reasonable care to present foreseeable harm. In the situation outlined by the member, I would suggest that the driver would not have taken reasonable care. That, I think, deals with that hypothetical case and gives the general principle that governs, or at least obtains, in that case. So unless the member has a question on that specific hypothetical question, I will go on to the issue of amendment.

To the amendment. I think the burden of the amendment, essentially, was to say "as far as is reasonably practicable."

[ Page 8125 ]

That was the intention, and the notion was that the general duties of employers, then, would be given that caveat, if you will, or that qualification: namely, that every employer must as far as is reasonably practicable do the following things. So that's what the nature of the amendment was. The member said that simply to ensure that we don't impose a too onerous burden on the employer in this instance, and in other sections, a too onerous burden on other people. Here's my advice -- the advice that I've been given, I should say.

As a general rule, British Columbia law does not attach qualifiers to a phrase such as "as far as is reasonably possible," for example, to its statutory obligations. That's the general rule for making laws in this province. Therefore I do not see the amendment as proposed by the member opposite as necessary.

But I want to elaborate a little bit. In response to the alternative suggestion put forward by the member opposite . . . . And you'll recall that the alternative suggestion from, I think, the member for Shuswap and then, as I recall, the member for Vancouver-Quilchena quoted it into the record -- namely, couldn't we just add that "section 215 of the act will obtain here." The member for Vancouver-Quilchena asked why we couldn't do that, and if we did that, maybe that would solve the problem and would answer our questions about the applicability of due diligence, which is

section 215. That's a long-winded explanation, but I hope I've clarified it.

Our notion, and the advice we were given, is that

section 215 applies across the board. The legislation may not say that in as crystal-clear terms as the member would like, but it does. That's the advice from legislative counsel. In other words, the defence and the requirement for due diligence are given across the board in this act -- all right? So we don't need to say it there; we simply don't need to do that to achieve that end. Legislative counsel advised us that we could include the new provision in

section 122, which points to the application of sections 196(6)(

a) and 215 -- both of which outline the defence of due diligence -- and to

section 216, which is the additional defence for workers to the obligations imposed by this part or the regulations. However, this would be a pointer or a clarification only. It would have no other substantive purpose and would simply add another provision to the bill. It would not add any additional substance.

For those reasons, I am arguing that we will not accept the amendment. We believe that

section 215, due diligence, in fact solves the problem the member refers to. I hope I have given an adequate explanation of why we take that position. I thank him for the amendment; I'm sure it was well intentioned. But our advice is that the amendment is not necessary.

If I might conclude this peroration, the other point to make is that what I have said about the amendment in regard to

section 115 also pertains to the other sections for which the amendments have been proposed. I hope that will answer the member's question, and with that, I will give him an opportunity to respond.

C. Hansen: I want to get clarification on what the minister just said. If I understand the way he has presented it, as coming from legislative counsel, what they are saying is that what we have in sections 215 and 216 has the same effect as the amendment that I am proposing. Is that fair to say?

Hon. D. Lovick: I'm advised that in the amendment proposed, the "as far as is reasonably practicable" in fact establishes a lower standard than does the existing wording that we have in the due diligence section. That's what my advice is.

C. Hansen: Therefore, if this became an issue in a case that was actively under consideration, they could look at the

interpretation that is commonly acceptable for "reasonably practicable," and they could interpret

section 215 to be a higher standard than that. In other words, in arguing the impact of

section 215, counsel, for example, could relate to the common understanding as to what a clause such as "reasonably practicable" means and determine from that that

section 215 is, in fact, a higher standard.

Hon. D. Lovick: Because we're on tricky legal ground, I want to be very careful about how I answer the question. The answer is that

section 215 is a defence. It doesn't establish a higher standard of obligation or something; it's a better line of defence -- a higher, stronger standard of defence. I think that's clear.

C. Hansen: I guess it comes down to where advice comes from. Certainly I had advice that indicated that this is a stronger term. I accept the minister's comments, which are on record in Hansard , in terms of how

section 215 can be interpreted. Given the advice that I have, I would still like to leave my amendment; I will not withdraw it. We'd still like to put it forward, because based on the advice that we have, it would add to this bill. But I'm certainly prepared to have the votes take place.

B. Penner: Hon. Chair, I've been sitting here listening to the debate. I'm not entirely clear exactly what the minister's comments were meant to mean. I have tried before to argue in court the defence of due diligence, and I just want to make it very clear on the record in Hansard what exactly the minister's comments were intended to mean.

[2:45]

Does he mean to say that it will be more difficult for an employer to avail themselves of the defence in

section 215 than it would be in the amendment proposed by my colleague the member for Vancouver-Quilchena, or does he mean the opposite? Does he mean that it would be easier to avail oneself of the defence contained in

section 215, as opposed to the amendment put forward by my colleague?

Hon. D. Lovick: The short answer is that the better defence will be found in

section 215.

B. Penner: Better defence from whose perspective? From the employer's perspective?

Hon. D. Lovick: With regard to this section, the better defence would be provided to the employer. With regard to other sections where we invoke

section 215, the better defence would be provided to whomever is referred to in that particular section.

My goodness, I think that's very clear.

C. Hansen: I'm just looking for some direction. In terms of the amendments, there were some that were formally moved before we stood down; there were others that were stood down before the motions were placed. I notice in Orders of the Day that we have printed all of the amendments, I think -- both those that were stood down after being introduced, and otherwise. I would like to place each of these amendments, and we will vote on them.

The Chair: Just move each one as we get to them, member.

C. Hansen: Just one other comment: I would have that amendment on division, please.

[ Page 8126 ]

Amendment negatived on division.

On the second amendment to

section 15,

section 115.

C. Hansen: In terms of the other amendment that is on the order paper in my name:

[SECTION 115, line (2), by adding after the words, "an employer must" add the words "as far as is reasonably practicable".]

Amendment negatived on division.

Section 15,

section 115 approved.

section 15,

section 116.

C. Hansen: On the amendment standing in my name:

[SECTION 116, line (2) by adding after the words, "a worker must" add the words "as far as is reasonably practicable".]

Amendment negatived on division.

Section 15,

section 116 approved.

section 15,

section 117.

C. Hansen: On the amendment standing in my name:

[SECTION 117, line (1), by adding after the words, "Every supervisor must" add the words "as far as is reasonably practicable".]

Amendment negatived on division.

C. Hansen: The second amendment standing in my name:

[SECTION 117, line (2), to adding after the words, "a Supervisor must" add the words "as far as is reasonably practicable".]

Amendment negatived on division.

Section 15,

section 117 approved.

The Chair:

Section 118 has been passed.

section 15,

section 119.

C. Hansen: On the amendment standing in my name:

[SECTION 119, by adding after the words, "Every owner of a workplace must" add the words "as far as is reasonably practicable".]

Amendment negatived on division.

Section 15,

section 119 approved.

section 15,

section 120.

C. Hansen: On the amendment standing in my name, in terms of suppliers:

[SECTION 120, by adding after the words, "Every supplier must" add the words "as far as is reasonably practicable".]

Amendment negatived on division.

Hon. D. Lovick: Before we leave

section 15,

section 120, I think that in fairness and courtesy to the member opposite, I ought to respond to a point he raised under this section. When we decided to stand it down, we left in abeyance the issue raised regarding out-of-province suppliers. I assured the member that I would get an answer to his question. I now have that, and I'd like to share it with him.

The issue raised by the member with respect to out-of-province suppliers is one which extends beyond occupational health and safety. The royal commission also noted this as a concern. If the entire operation is out of province, there is no recourse through this legislation. I think that's worth emphasizing. If, however, the supplier has a presence in the province -- for example, an employee or an agent -- then that individual would become subject to the act, and there would be recourse.

The WHMIS, or hazardous products legislation and/or regulations, is consistent across Canada, and the supplier, regardless of whether from B.C. or another province, who is supplying something which falls under these regulations must be in compliance with these regulations. I hope that clarification satisfies the member.

Section 15,

section 120 approved.

section 15,

section 121.

C. Hansen: On

section 15,

section 121 . . . . We had not dealt with this

section in any way, shape or form before we stood it down. Certainly there are a variety of issues that I think have to be raised under this section, but in doing so, I will move my amendment that I have standing in my name, which we can speak to. That is, by adding after the words, "every officer of a . . . . " My apologies. Actually, what's on the order paper is . . . . The amendment should read:

[SECTION 121, after the words, "every director and every officer of a corporation must ensure," add the words "as far as is reasonably practicable."]

The effect is exactly the same.

On the amendment.

In speaking to both the amendment and the

section itself, this is an area where I think this provision is probably even more essential. We have, in this section, put liabilities and responsibilities on directors and officers of corporations. I feel, from a superficial look at this, that while they may be desirable, in practical terms they are virtually impossible to implement in a reasonable way. At the same time, I think that onus comes back because of the wording of this legislation in a way that is very difficult for directors and officers to deal with. I'm wondering if maybe we can start with the minister explaining to us how a director or an officer of a corporation is expected to fulfil the obligations under this section.

Hon. D. Lovick: It would seem to me that the most succinct answer to that question and, I think, a satisfactory one, is to say that the director and the officer would simply ensure that their management advised them about what they need to know in order to comply with this. That just becomes a management obligation and responsibility. The director, in taking her or his responsibilities seriously, would simply insist that that be done. That's how.

C. Hansen: But if we look back on the duties that we talked about earlier this morning regarding the duties of owners . . . . Or maybe that was yesterday; I'm starting to lose track of when these particular points came up. But when we talked about the duties of owners, the minister was very clear in saying: "Look at the words. It's very limited. It talks about

[ Page 8127 ]

the parameters of the owners' responsibility." But if you come down to

section 15,

section 121, which is talking about directors' and officers' responsibilities, it is extremely broad. What it says is: "Every director and every officer of a corporation must ensure" -- and ensure is a very powerful word in legal terms -- "that the corporation complies with this Part, the regulations and any applicable orders."

That's not a case of just saying: "Make sure you've got good management that knows what it's doing." This is a case of actually giving liability -- personal liability -- to directors and officers for the implementation of all aspects of this piece of legislation. It is very detailed. In order to fulfil these obligations, a hands-on, day-to-day, hour-by-hour management style is required. The minister is saying: "No, no, no." Perhaps he can explain. Perhaps he can enlighten us.

Hon. D. Lovick: When I'm saying "no, no, no," what I mean is that I don't think fulfilling one's obligation under this

section or part of the act comprises or requires a day-to-day, ongoing, hands-on approach. Rather, it's a matter of looking at the principal responsibilities; namely, to ensure that one has a safe workplace and to make sure that one takes steps to do whatever is reasonable -- again, in the language of the legislation -- to ensure that. That's how you fulfil your obligations. And you tell your manager: "I want to be advised. I want to make sure that we are not going to find ourselves in court or something because of a flagrant violation of basic health and safety regulations." That's what this entails and confers as an obligation.

I'm sure that the opposition would agree with me. Most of us recognize that when we say that we want people who become directors and officers in business dealings to be accountable -- and I believe I've heard the opposition argue that in more than one instance -- that it is a legitimate obligation of the people in those positions. The question is: why not with occupational health and safety? It seems to me that this is a legitimate demand, a legitimate responsibility to confer on the director of a company. I don't think that it's difficult or problematic or outrageous.

I would also just make the point that the defence of due diligence also obtains here in

section 215. And you know where that will lead me in terms of your amendment -- if there is an amendment, of course.

C. Hansen: What's important in this context is to talk about the due diligence that would be expected of a director under this legislation. What we are doing here is imposing personal liability and personal responsibility. In this context, we're not talking about a director who is also the general manager, owner and chief bottlewasher in a small business. That's covered under the other provisions. They include employer, supervisor and owner. I appreciate that we have a

section that says if there are multiple responsibilities by one individual, then that person is responsible for all of those collectively. Where this particular clause becomes applicable is in a case where you have a director or an officer of a corporation who is not a manager, the employer or the supervisor. They have certain responsibilities that are imposed upon them. What we have in this case is a director who is not part of the workplace on a regular basis. Presumably, if they were part of the workplace, they would be a supervisor, an employer . . . .

They would wear one of those other hats for which they would have those responsibilities. What we're talking about is an officer or a director having those responsibilities when he or she is not connected to the workplace. My question to the minister is: how does a director fulfil those obligations in a way that shows that he is performing due diligence under this particular piece of legislation?

Hon. D. Lovick: It seems to me that the answer is really quite straightforward and -- dare I say? -- easy. That is to say, given this legislation, it would seem to me that part of the agenda at the board meetings would be a report on the workplace in terms of occupational health and safety. For example: what meetings have we heard about? What problems have been brought to our attention? What concerns have been expressed by our management or by workers at safety committees or by worker representatives?

In order to comply, the manager's responsibility is essentially to, on the one hand, monitor WCB orders if those are made -- in other words, if there is an order from the WCB that says: "Clean up portion X of your facility because we suggest it's not safe." On the other hand, it's to be aware of the general state of occupational health and safety in the company. If I'm a director and I know that this potential liability is hanging out there, then I will say to the management: "Put on the agenda, thank you very much, a report on workplace health and safety.

Insofar as you do that, and insofar as you answer my questions about that at a board meeting, then I have in fact demonstrated due diligence, and I have lived up to my obligations under the legislation." I think that's the answer to the question.

C. Hansen: My question would be to what extent a director has to be knowledgeable about the workplace itself in order to fulfil his responsibilities.

[3:00]

Hon. D. Lovick: At risk of sounding like the proverbial broken record, it seems to me that the defence of due diligence,

section 215 -- and it's a single sentence -- answers the question and says, sufficient to the question: "A person is not guilty of an offence if the person proves" -- it's awful language, by the way -- "that the person took every precaution that was reasonable in the circumstances to prevent the commission of the offence." It's a bit tautological, but it certainly makes the point. That is the basic argument in terms of what's required under

section 121.

C. Hansen: Am I right in my reading of this

section that these are areas extending personal liability to individuals?

Hon. D. Lovick: My information is that the answer is yes.

C. Hansen: My read of this is that when you talk about a corporation, you're not just talking about a for-profit company. There are all kinds of other corporations, I think, that would fall under this definition, including not-for-profit corporations.

Under the federal incorporations act, we do have something defined as a not-for-profit corporation. That term doesn't exist under B.C. law, where we have a Society Act. But I'm wondering if the minister could explain how this particular

section may apply to organizations other than for-profit corporations.

Hon. D. Lovick: The answer is that it does apply insofar as certain places that may not be for-profit companies are nevertheless workplaces. For example, handicapped people will run various kinds of workshop operations, that aren't technically workplaces. They're not-for-profit ventures. But the work goes on sometimes in machine shops, sometimes in carpentry shops. And our contention, of course, is simply that

[ Page 8128 ]

those individuals deserve every right to protection under the law; their health and safety deserves the same protection as that of any worker who's being paid a wage.

C. Hansen: I certainly don't dispute what the minister just said. I am wondering if the minister has looked at this clause from the point of view of the effect it's going to have on the ability of not-for-profit organizations to recruit directors, because what we have is an increasing liability being borne by volunteer directors of dozens, hundreds, thousands of organizations around British Columbia.

Hon. D. Lovick: I would simply answer by reminding the member that in the employment standards legislation we now have, there are some obligations conferred on directors. For example, if you look at the Employment Standards Act, the corporate officer's liability for unpaid wages is listed there; the officer, as I say, has that liability already hanging out there. So I don't think this is some kind of aberration or some horrible brand-new and different thing.

However, in fairness to the member, I think that it ought to be acknowledged that we are talking about a different environment and one in which people will obviously require some education to ensure that they do indeed protect themselves. But as I say, I think any manager worth that title is pretty clearly going to make sure that once they've received notice that this is indeed the law, they are going to advise their board of directors: "There is a also a

section here that refers to you, and these are your obligations under the law."

To answer the specific question, I don't think there is a problem with compliance. As long as they know what it is they're getting into, I think people will still accept their responsibilities to community, etc., in terms of the volunteer sector and serving on those bodies.

C. Hansen: Could the minister tell us if they have looked at the impact this may have in terms of increased costs for directors' and officers' liability insurance -- not just in the context of not-for-profit organizations, but for all corporations? I know that in the private sector, directors' and officers' liability insurance has been a very important component of attracting individuals to serve on boards of directors. It has also become increasingly more expensive, and I would hazard a guess that this particular clause is definitely going to put upward pressure on what that kind of directors' and officers' liability insurance is going to cost.

The other issue involving the not-for-profit sector is that a lot of organizations have been wrestling with this because of the fact that they can't attract directors to serve on their boards, because of the liabilities that governments are adding to those responsibilities. So not-for-profit organizations have increasingly started to look at directors' and officers' liability insurance, only to find that it is horrendously expensive. I would hazard a guess that this is going to add a lot of cost to those not-for-profit organizations, in that manner. My question to the minister is: have they looked at the implications of this

section for the cost of directors' and officers' liability insurance?

Hon. D. Lovick: This has not been analyzed in terms of its cost implications, for one simple reason -- namely, that in all of the consultation and discussion that went on, the matter was not raised. And one would think that logically, if indeed it were a festering sore or a problem out there waiting to erupt, we would have heard about it.

I think at this point, Mr. Chairman, that I also ought to explain in a little detail why this new

section is here. The reason the new

section is here is essentially because recent history in this country has demonstrated that some people have indeed been able to hide behind the corporate veil, as the saying goes. And let me give you the paradigm illustration, and that's the Westray mine disaster. You recall what happened there. It was a matter of all of the principals involved, including governments, essentially going like this: "Look somewhere else. It wasn't me; it wasn't our fault." And at the end of the day the question was: does anybody own this tragedy; does anybody own this horrible, horrible thing that happened?

The Nova Scotia government, following the Westray inquiry and that horrible disaster, wrote to the federal minister responsible requesting changes to the Criminal Code of Canada -- to the Criminal Code -- to make corporate directors more accountable. Other jurisdictions are also looking at doing something, again to ensure that those kinds of tragedies won't happen and the guilty go free. I think that's a legitimate and necessary response to those kinds of disasters.

For example, the Ontario statute on occupational health and safety contains similar language to what we are proposing here. The difference, though, is that because the Ontario statute doesn't have a defence of due diligence built into the statute, it therefore uses language that "all reasonable care must be taken." I understand there have been cases in Ontario where corporate directors and officers have been charged with an offence. There haven't been prison sentences given, but individuals certainly have been personally fined. And so, in other jurisdictions, as I say, in looking at this problem about corporate responsibility and the directors' responsibility, that's the conclusion.

I also understand that the province of Nova Scotia is likely to move to similar language regarding occupational health and safety, precisely because of the Westray disaster. I think, then, that what we're doing here is defensible and appropriate. In order to prevent what occurred in Westray, the price we pay in perhaps an increased cost in terms of liability insurance is defensible and legitimate.

C. Hansen: Certainly, if the minister looks at

section 15,

section 213(2), under "Offences," we have a clause which I think captures everything that he was trying to describe in terms of those other tragedies that have happened and the ability of government to hold responsible the directors and officers who are part of the problem. In the wording here, it says: "If a corporation commits an offence referred to in subsection (1), an officer, director or agent of the corporation who authorizes, permits or acquiesces in the commission of the offence also commits an offence."

I would contend that this clause achieves what the minister is trying to achieve in terms of giving responsibility and accountability to directors and an ability to punish directors who wilfully or knowingly violate provisions in the statute. Given that we have that provision under

section 213, why is it that we need

section 121 at all?

Hon. D. Lovick: Sorry, Mr. Chairman. Once we start zipping ahead to

section 15,

section 213, the book gets mixed up sometimes. So I'm sorry for the delay.

I think I can crystallize this pretty readily by saying that

section 15,

section 121 creates the duty and that

section 213 is an enforcement, if you like, or outlines the offence that one commits by not living up to the duty created in

section 121. That is, I think, the clear and direct relationship between those two sections.

[ Page 8129 ]

Amendment negatived on division.

Section 15,

section 121 approved on division.

Section 15,

section 122 approved.

The Chair: We've passed

section 15, sections 123 to 126.

section 15,

section 127.

C. Hansen: I know we canvassed this fairly extensively this morning. I don't think I have anything particular to add, other than just a general comment. We have some real concerns not with the concept of the joint committees themselves but rather with the fact that they are being extended into areas to which we feel they will add process but really do nothing to enhance worker safety. So when it comes to how the makeup of the committee is structured, we certainly feel strongly that there are other ways of approaching this particular problem. But I have nothing more to add in terms of questions to the minister.

Section 15,

section 127 approved on division.

section 15,

section 128.

C. Hansen: The royal commission . . . . If we come down to sub-subsection 128(1)(c), it reads . . . . This is on the selection of the worker representatives to the committee. Sub-subsection 128(1)(

a) is in terms of there being unions in place; sub-subsection (

b) is that if there are no unions, it goes to a secret ballot of workers; and (

c) says: "If some of the workers are represented by one or more unions, and some are not represented by a union, the worker representatives are to be selected in accordance with paragraphs (

a) and (

b) in equitable proportion to their relative numbers and relative risks to health and safety . . . . " If we go to page 42 of the royal commission report, it's not worded that way. The process of selecting worker representatives was, in fact, spelled out by the royal commission, and this is a notable change from what the royal commission had suggested. What the royal commission had proposed was that where only part of the labour force is represented by a union, each group of workers must be represented proportionately on the committee.

So we've added in here -- the minister has added in -- a provision that says proportionate "to the relative numbers and relative risks to health and safety." I would like to ask the minister why that particular clause would be added in addition to what the royal commission had recommended.

[3:15]

Hon. D. Lovick: You perhaps heard me say that the commonsense answer sprang to my lips, but I was being given advice from staff so I wanted to wait for that. The commonsense answer is simply that this looks to me like a nice clarification of what equitable representation means, and I don't see a problem with that. If you say that both groups are to be represented, what better way to do it than to do it on the basis of how many there are, on the one hand, and secondly, how directly affected they are by occupational health and safety matters?

The specific answer, in terms of why this is here and where it came from, is that the reference group was presented with draft legislation. At that point, it had the language of the royal commission, and the business representatives at the reference group said: "How the heck would anybody translate exactly what that means?" To answer the question in terms of what exactly that means, we came up with this language. So that's the genesis of that particular use of language in the bill.

C. Hansen: The minister said that common sense would dictate this was a clarification. I think it's exactly the opposite. Certainly in terms of being something that can be actionable in a practical way, the wording that we have before us is anything but. You know, if you want to come up with a process that is clear to all concerned, that is based on . . . . We're not going to have different groups saying, "No, we interpret it this way," and have them come at the issue from two separate points of view. It would be easier to administer to simply have it broken down by their proportion of worksite.

You've got 51 percent of the non-management employees in a union, and you've got 49 percent who are not in a union. Maybe that was a bad example; then they would each get one. But let's say you've got 26 percent who are not in a union -- this is a better example. No, actually, I'm getting myself completely twisted up here, aren't I?

If you select one . . . . You have to select two representatives . . . . Let's start the arithmetic over again here, before I thoroughly confuse myself. You've got to select two worker representatives to be on the safety committee. You've got a portion of those workers that are unionized and a portion are non-unionized, so you have to come up with a system that gives fair representation to all of those workers. What we've come up with here is a double process. It's not just based on the percentage of the workplace, it's based on this other factor which is called "relative risks" -- something that is totally subjective and really open to all kinds of

interpretation. So from the point of view of trying to get one of these committees set up and structured, why don't we keep it simple as clear as possible? That's simply to say, based on the percentage of workers, that they select their appropriate representatives. That still leaves the problem of how you wind up with one-and-a-half union worker reps and one-half of a non-union worker rep, but that's another issue that they would obviously have to deal with.

If you further complicate that process by factoring in relative risks, it's a process that could lead to a lot more problems than it does solutions. I wonder if the minister could explain how an employer, who is trying to ensure that this committee is properly set up . . . . How will the worker representatives evaluate these relative risks in this case?

Hon. D. Lovick: After listening to the question, I have to remind myself that it's almost 30 years ago that human beings landed on the moon. It's amazing what we, as a species, can do if we put our minds to it. As I look at this incredibly difficult problem adduced by the member opposite . . . . Oh, yeah, obviously the moon landing was chicken . . . by comparison; now this is really complicated. I'm sorry, I don't mean to be unkind, but I really have great difficulty seeing this as an insurmountable problem.

Let me just give comfort to the member. If you look closely at

section 128, you will discover in sub (3) that in the event that this problem is indeed too large, is insurmountable, and we can't work it out, guess what: "The employer, or a union or a worker at a workplace referred to in subsection (1)(c), may request the board to provide direction as to how the requirements of that provision are to be applied in the workplace." In the event the problem is too difficult to solve, there is recourse.

C. Hansen: I can see that we are looking at this from two very different points of view, but I've made my point. We'll

[ Page 8130 ]

move away from that one. But I do think that this is going to have to come back to somebody doing some work on what the heck this means down the road. It certainly isn't clear to somebody who's trying to use the wording in this legislation to give guidance as to how they proceed.

The minister mentioned the fact that the board can provide direction, and I want to come back to a point that I made this morning with regard to the increased workload that is going to be on the board. This is in subsection (2), where it says: "The employer or a worker may request the board to provide direction . . . . " My reading of that is that we're going to wind up with a significantly increased workload for the board, to provide that kind of direction.

Am I right in the

interpretation that basically any one worker in the workplace can apply to the board to provide direction in this area, and the board is under an obligation to put some work, some effort, some employee time into answering a request of this nature that could come from any worker in any workplace?

Hon. D. Lovick: The member is quite correct in that theoretically that could happen; but frankly, it's hard to imagine. We could be looking at some disgruntled employee who hated all the other employees, the majority of employees decide that they want to elect persons X, Y and whatever to be on the committee, and this individual felt that she or he ought to have been on the committee and therefore said to the board that they were outraged. I would think that in fairly short order the board, perhaps in the early days, would get some questions like that, but would soon learn to do a form 6C letter -- okay, another one of those . . . so write the appropriate letter.

There may be some growing pains, and the member is quite right that this conceivably could happen. But in terms of it conferring an extra new dimension of responsibility and workload on the board, no, I don't think that follows.

C. Hansen: Am I right, in my

interpretation of subsections (2) and (3), that . . . ? It talks about the request being made to the board, but the board -- given other sections in here -- is under an obligation to respond to any of these requests that do come in, either from a worker or an employer, in terms of the administration of this board. Is that fair?

Hon. D. Lovick: There is no direct obligation conferred here, but the board mandate says that, indeed, one of the obligations that the board has is to provide assistance when requested by workers and employers.

G. Abbott: I'd like the minister to address, for a moment, a concern I have with respect to

section 128(1)(b). This reads:

"

(1) The worker representatives on a joint committee must be selected from workers at the workplace who do not exercise managerial functions at that workplace, as follows:

"(

a) if the workers are represented by one or more unions, the worker representatives are to be selected according to the procedures established or agreed on by the union or unions;

"(

b) if none of the workers are represented by a union, the worker representatives are to be elected by secret ballot . . . . "

The question to the minister would be: why, in the instance of subsection (1)(a), is it an agreement according to procedures established or agreed on, and in sub-subsection (b), it's by secret ballot? Would it not be reasonable, if indeed we're looking for some flexibility on this issue, to have in sub-subsection (b), as well, the opportunity to say: "or by alternative procedures established or agreed on by the workers"?

So if the 25 workers in a non-union workplace decided that they were going to have open meetings where they discussed the pros and cons of safety and, by an open vote, decided on the selection of the safety representative, that might be entirely fitting. I'm not sure why we are taking that opportunity to do that away from non-union workers in this instance. I say this particularly given the fact that this government has formed the conclusion, I believe -- if I'm not incorrect -- that even on matters such as certification for unionization, a secret ballot is not necessary.

I'm curious as to why, in this instance, non-union workers are put down one funnel and the union workers down another.

Hon. D. Lovick: The short answer is simply: because, by definition, the union has already, in one way or another, demonstrated that a majority of its members have supported it. Otherwise it couldn't continue to exist. It has, in short, by definition, already manifested the support of a majority, and therefore it doesn't need to go through the procedure. Some other group doesn't have that same characteristic, by definition, and therefore the assumption is that a secret ballot would be appropriate.

G. Abbott: I understand how unions form and so on. But what we're talking about in this

section is not whether a group of workers certify as a union or don't certify as a union; we're talking about the processes under which they would arrive at some conclusions about who should be their safety committee or the worker representative on a joint committee. I don't understand why, on the one hand, a secret ballot would be necessary for 25 non-union workers,

whereas it apparently is not for the 25 union workers. I think the distinction is kind of arbitrary, shall we say, and I don't follow the practical reasoning behind this particular distinction.

Hon. D. Lovick: I'm not sure, Mr. Chairman . . . . Is the concern the member is . . . ? I know one doesn't ask questions of the questioner, but -- rhetorically -- is the member expressing a concern about the fact that the union doesn't use a secret ballot to determine who its representatives will be? Is that the primary concern?

[3:30]

As I said, I think the answer is that the mechanism is -- and some may, but they don't necessarily need to . . . . The fact that they all belong to a union is, in effect, an ongoing daily compact in which the majority has expressed its opinion. That's how it became a union -- by whatever mechanism they chose. So to answer that part of the question, I think that is sufficient.

Something else?

G. Abbott: I won't dwell on this, but the concern I have is with

section 15,

section 128(1)(b), rather than

section 128(1)(a). Under the terms of this, if the union chose a secret ballot as the most appropriate way to select their worker representative on a joint committee, then they have that opportunity. The point I'm making here is that there is reference in

section 15,

section 128(1)(

a) to "procedures established or agreed on." That language is not found in

section 128(1)(b). In

section 128(1)(b), the non-union workers are provided only the opportunity to elect their representative by secret ballot.

What I'm saying is that in some workplaces, if the workers jointly agree that it's better to have an open meeting and air their sundry concerns about safety in the workplace

[ Page 8131 ]

and openly select their representative, then that might be the appropriate way to do it. Currently they are limited to a secret ballot in this case. I'm curious as to why there is the difference of language.

Hon. D. Lovick: I thank the member for the point. I must say that I don't have any disagreement with the point he's making. All I will say is that because we didn't hear any powerful expression of opinion from anybody on this matter, we simply followed the recommendation of the royal commission. Essentially that's the answer, I guess.

C. Hansen: If we come down to subsection 128(1)(d), it states: " . . . if the workers do not make their own selection after being given the opportunity under paragraphs (

a) to (c), the employer must seek out and assign persons to act as worker representatives." I'm wondering if the minister could explain what would happen in a situation where all workers in the workplace refused to take on this responsibility.

Hon. D. Lovick: In the unlikely event that nobody at the workplace said, "Safety matters to me, and I want to be involved in that," then obviously an employer can say: "Right. I will make that part of your job description."

C. Hansen: In other words, the employer has an obligation under this term to force an employee to assume these responsibilities. That's basically what the minister just said. Is that accurate?

Hon. D. Lovick: I guess that comes under the heading of management rights. The sinister implications of the language used notwithstanding, yes, that is indeed true.

C. Hansen: This is just a point of information. In the opening sentence, where it talks about "managerial functions," is there a common definition in the occupational health community as to what managerial function is? In a lot of workplaces, as I mentioned during second reading, there is not a culture that says we have workers and management. In most small businesses there's a culture where the lines are really blurred, basically. I'm wondering if there is a precise meaning to that expression.

Hon. D. Lovick: I'm advised there are two areas that answer the question. There is a common-law meaning, and there is also employee-employer relations literature where "universe" also has its own definition -- or understanding at least.

C. Hansen: The minister was talking earlier about how this legislation is going to have to sink in -- I forget the words he used. But is it reasonable to expect that the WCB will be coming out with guidelines or information to give direction to employers as to how this whole process has to be implemented and what some of these terms in fact mean?

Hon. D. Lovick: Yes, that is the case.

Section 15,

section 128 approved on division.

section 15,

section 129.

C. Hansen: This

section pertains to the selection of an employer representative, and it's a much shorter section. I want to ask the minister about . . . . Again, we talk about selecting representatives to the joint committee from among persons who exercise managerial functions, but on the next page, in subsection (2), it says: "For certainty, an individual employer may act as an employer representative." It talks about "for certainty" as if that's for clarification, and I think it makes it less clear not more clear.

What would happen if we had a situation where in a small business with, say, 20-odd employees, there is only one person in that organization who meets the definition of having a managerial function?

Hon. D. Lovick: I'm advised that precisely this issue was apparently discussed at the reference group and was not seen to be of any special concern.

C. Hansen: With all due respect, it doesn't even come close to answering my question, because I'm not concerned about the reference group. My concern is: in a workplace where you're setting up a committee of four people -- two worker representatives and two management representatives -- but you only have one person who fits the definition of what constitutes a management representative, does that person, then, have two votes? Does the one and only manager have to go out and find another . . . ? Do they have to promote a worker to a management function in order to make sure that they have four people on the committee?

Hon. D. Lovick: There is no requirement for parity. It doesn't have to be two and two; it could be one and three in the circumstance the member alluded to, however unlikely that circumstance might be in the real world.

C. Hansen: Actually, I can think of a lot of workplaces that have more than 20 employees but there's only one manager at a time. My concern, though, is that when we get into later sections, we talk about the operations of these committees. There's nothing to say that there has to be a unanimous vote, for example. In fact, one of the concerns I have is that when it gets into the procedures for operation of these committees, it's set up to have votes that are going to go two and two. What's the process? Other than putting more work onto the WCB, how do you resolve those issues?

In this case, you've got a situation where you've got three people. If it comes down to a vote that becomes an issue of management versus workers, management is going to lose 100 percent of the time. I'm just wondering if that in fact would happen in a situation like that.

Hon. D. Lovick: I think we're dealing in the realm of hypothesis at this point, and I'm not sure that's a wise approach. I suppose that if I were an employer and thought that the decisions made were having some kind of negative impact on the operation, my temptation would be . . . . Given that I was by myself and had 20 employees, I would probably be willing to contemplate making somebody else a manager and giving them some managerial function in order to protect myself. But I guess that's too simple an answer to the problem.

C. Hansen: I don't have any other specific points regarding

section 129. We can deal with that and move on.

Section 15,

section 129 approved on division.

section 15,

section 130.

C. Hansen: I think this is basically the

section where we talk about the functions of the joint committee and the various

[ Page 8132 ]

responsibilities they are given. Does the minister feel that these committees will be operating based on a majority vote, or do they have to work on a basis of consensus?

Hon. D. Lovick: The first point to note is that the committees are primarily advisory. One would think that they would operate essentially on a consensus-based approach, given that they are designed to be cooperative and consultative in nature. I would think that would be the case. The

Interpretation Act, however, makes very clear that any committee can indeed decide things by way of a majority vote. They can do that if they so wish.

C. Hansen: The minister said that they are primarily consultative, and certainly we see that a lot in the functions that are set out. But there are some key exceptions to that where they are not just consultative -- under (a), for example, where you talk about the requirement of the committee "to identify situations that may be unhealthy or unsafe for workers." I would like to ask the minister if that implies that there is any liability on the part of committee members if they fail to perform their duties and functions as defined in

section 15,

section 130(a).

Hon. D. Lovick: I can't imagine a circumstance in which that kind of liability might attach to action or inaction. It seems to me that what happens in a joint committee that has duties and functions -- including, among other things, to identify situations that may be unhealthy or unsafe for workers -- is a matter of people sitting around a table, perhaps, and saying: "Right.

Anything on the agenda this week?" And somebody from either the employer side or the worker side says: "Yeah, I'm worried about that stupid mat that we've got outside the coffee room, and if we don't put some little rubber sticky things under that, somebody's going to fall and break their neck. So why don't we just do that and be done with it?" And everybody says: "Yeah, good idea. Let's do that. Anything else on the agenda? Nope? That covers it for today. Thank you very much.

See you guys next week." That, it seems to me, is the way this committee might well function in a number of those smaller, ostensibly non-hazardous workplaces.

C. Hansen: But certainly you've also got the situation where members of these safety committees have taken their annual education leave in terms of how to identify safety hazards in the workplace. In addition to that, under this section, you're now giving them a duty to identify situations. It's not a consultative thing; it's a duty to identify.

If you then wind up with a safety committee member who's been through a training program to give them the expertise to make knowledgeable decisions in identifying unsafe workplace practices, and then they fail to do so and somebody gets injured, we wind up with an inquiry or investigation that shows that the committee member had every ability to identify it and failed to do so. Do individual members of the safety committee incur any liability if they fail to perform their duties as set out in this legislation?

Hon. D. Lovick: This seems to be a matter of hypothesis piled on speculation on top of what might be, and that's a little tough to deal with, especially if the member is asking me to give a legal opinion as to the result of . . . . I'm sorry, but with all due whatever, one simply can't do that.

[3:45]

What we're looking at here, again, is simply a clear enunciation of the responsibilities of the joint committees. The only kind of liability, it seems to me, that we'd ever be talking about is if somebody knew specifically there was a problem and for one reason or another -- bribery, coercion, intimidation, fill in the blanks -- decided not to do that. If evidence was proven that the person had been derelict in her or his duty, then I suppose some kind of liability could attach, but beyond that it's a huge stretch, it seems to be me, to do that. Also, it doesn't say that the joint committee must do anything.

It rather says: "These are your obligations, these are your functions, these are your duties."

Again, what I have been saying from the beginning is that the purpose of this legislation is to grow that partnership culture in which we all say that working together we're going to do something about accidents and injuries in the workplace. That's what the exercise is about. It's not to be punitive. It's not to send people off to safety school so they come back like little Sherlock Holmeses and say: how can we make life difficult for the employer?

That's not the intention, and to suggest that is what will result from employees actually getting some education on how you create and maintain a safe workplace, it seems to me is a huge stretch. I hope the member will agree with me in my rather passionate response to that last question and will move on to, I think, something a little more serious.

C. Hansen: I'm surprised the minister doesn't think that these questions are serious, because they are. If we're looking at hypothetical situations, that, quite frankly, is part of our responsibility when we're reviewing legislation: to look at the impacts, not just as to what the minister would like to think the effect of legislation is, but rather what the effect of legislation could be in various circumstances and situations around the province.

Clearly, in the time that we've had to review this legislation, I certainly have only got a feel for a very small percentage of the circumstances in which this legislation is going to have an impact. But if you look at it . . . . Again, under subsection (h), here is probably I think the most onerous responsibility that is on the safety committee; that is, a duty "to ensure that accident investigations and regular inspections are carried out . . . . " I would like to ask the minister in practical terms how a safety committee is supposed to provide that kind of assurance.

Again, does that not imply that there is some liability coming back on the committee members if they don't fulfil the obligations as set out under that section?

Hon. D. Lovick: There is another

section in this part that confers an obligation to investigate if an accident occurs. This merely says that one of the responsibilities of the joint committee is to ensure that that happens, or that it has happened. Beyond that, there's nothing more onerous. Again, it's pretty straightforward.

C. Hansen: If we look at subsections (

e) and (f), we have a requirement in both of these sections to monitor effectiveness. Can the minister explain to us how a safety committee is supposed to realistically monitor the effectiveness of programs and policies to promote occupational health and safety compliance? Could the minister explain how this group of workers and managers has the capacity to monitor effectiveness? Certainly there are people that spend careers developing the expertise necessary to provide that kind of a service. What is envisioned by the role that the committee has to play when it comes to monitoring effectiveness?

Hon. D. Lovick: I think that the short answer is that the committee members would listen to what their co-workers

[ Page 8133 ]

have to say. Obviously people would soon recognize who are the safety committee people, and would probably say: "Oh, by the way, I'm concerned about X." I don't think it beggars the imagination to consider that happening.

Secondly, it seems to me that claims, injuries, incidents of unsafe practices, incidents of perceived difficulties within the workplace would be the things that would trigger what the member refers to.

C. Hansen: What this discussion harkens back to is the point that I made earlier. I asked the question: what happens if no workers volunteer or are willing to serve on these committees? We start coming out with some of these various responsibilities that are going to be put on their shoulders. The minister said it's highly unlikely, but I think that it is likely that we would have workers in situations where they say: "No, I don't want that responsibility.

It's not part of my job, and I'm not going to take it on." The minister's response was that in that situation, you've got an employer who has to force an employee to assume that responsibility and to perform these duties as they're set out under this section. The minister doesn't have to respond to that -- just to put it on the record.

I do have one last question regarding this particular point. Actually, I think I learned last year never to say I have one last question, because it always triggers another one later. But at this stage, I think I only have one last question. That's regarding subsection (i), where there is a duty "to participate in inspections, investigations and inquiries as provided in this Part . . . . " This is a duty that applies to the entire committee. I wonder: is it envisioned that we're going to have all four members of the committee involved in these kinds of inspections, etc.?

Hon. D. Lovick: The answer is no. Later, in another

section of the act, it stipulates very clearly that a representative from the committee would suffice.

C. Hansen: Before we move past this particular section, I do want to draw attention to the fact that these duties and functions not only apply to a committee but also in the case of a single, sole safety representative in a workplace where there are ten to 19 employees. Certainly, as we start looking back through these responsibilities, that takes on another whole different complexion where you have a sole safety rep that has these duties and functions. In addition, I think there are some other concerns that I'll have when we come to the sole safety rep. But we can deal with them at that time and move forward from here.

B. Penner: I do have a question concerning subsection (

h) here in

section 130. The provision there is that a joint committee must -- and, as my colleague has pointed out, a sole safety representative -- "ensure that accident investigations and regular inspections are carried out as required by this Part . . . . " I'm still not clear how it is that a committee is to ensure that an accident investigation is conducted. To what standard, to what level and according to which instructions are these investigations to be conducted? Are we to anticipate that the WCB will issue regulations at some later date as to how accident investigations are to be conducted?

Furthermore, I'm curious whether it's anticipated that the committee itself will conduct these investigations, or whether it's just to arrange to have them done by some outside group?

Hon. D. Lovick: To answer that question, division 10 sets out the process.

Section 15,

section 130 approved on division.

section 15,

section 131.

C. Hansen: Here we have the operating procedure for a joint committee. I find it interesting that in the

section it says that the committee itself "must establish its own rules of procedure, including rules respecting how it is to perform its duties and functions." What is interesting in this particular

section is that it doesn't give any recourse to the board. As I mentioned earlier, I certainly have a concern about the amount of additional workload that will be put on the board to solve the 2-to-2 votes on some of these committees. In these other sections, at least there was recourse that they could go to, to try to resolve issues that they could not resolve internally among the four members of the committee. Here in this

section we don't have that kind of recourse, and I was wondering if the minister could explain why.

Hon. D. Lovick: The answer to the question is that that's for the committee to determine. Why involve the board in terms of telling the committee where it must meet, etc.? There doesn't seem to be any point, unless I misunderstood the question entirely.

C. Hansen: I think there are some very fundamental issues that a committee is going to have to decide on, in terms of how it conducts its affairs. For example, how long should the meetings be? Where should the meetings take place? I think that in a perfect world you would wind up with four individuals who sit down, and they would all be of one mind on these things. But it's not a perfect world, as we know. There will be situations where the very issues set out in

section 133(1) are not going to be resolved by a committee based on consensus. How are they to approach their mandate if they can't resolve those issues?

Hon. D. Lovick: The members of the joint committee are given these instructions to proceed -- largely at the recommendation of business, from the reference groups . . . . The intention was to keep the committee flexible so that it could not be bound by some too-rigorous set of instructions in terms of how it would function. The

section states merely that "a joint committee must establish its own rules of procedure," and that it "must meet . . . at least once each month." The notion is that committees, if there is any kind of happy relationship within the particular workplace, will probably have no difficulty having short meetings. For example, one of the procedures that a committee might establish is: "Let's arrange to meet at the coffee shop down the street, because we can have a better discussion and decide that maybe we can, in fact, wrap up our business in half an hour."

What seems to be behind the question, if I might put it that way, is that there are a whole bunch of people looking for an opportunity to be mischief-makers or something. They want to have long meetings, and they want to cause problems. Again, the intention of this is essentially just to try and see if they have joint concerns -- or concerns that ought to be of concern to all of them, and they should do something about solving them. Why he continues to suggest . . . .

I think I'm being fair to the member opposite in saying that his questions do seem to have an undercurrent of suggestion that we're creating this structure that might somehow . . . . "If you give these people the freedom to meet and you stipulate that they're going to meet once a month, for heaven's sake, look out! They could start to conspire and do all kinds of nasty things." Quite the opposite is intended.

[ Page 8134 ]

As well, I would refer the member to the fact that, as with so many other sections of this bill, in the event that there is a problem in the committee and they don't apparently have the wherewithal or the will to solve the problem, there is recourse to other avenues to do that. For example, in this instance

section 132 is headed "Assistance in resolving disagreements within committee." Again, back to the other point I've made with depressing regularity thus far, the board's mandate is in fact to provide assistance to committees so they can indeed carry out their duties effectively and efficiently.

C. Hansen: The very next

section is titled "Assistance in resolving disagreements within committee," but it's only relating to matters relating to the health or safety of workers. In terms of these procedural issues, in terms of how the committee functions, there is no recourse -- certainly not under

section 15,

section 132. The problem that we've got here is that we are creating committees that basically have some enormous latitude in terms of determining their activities, and yet whatever they do, the employer's going to pay for it. The employer's going to pay for time off, in terms of these meetings that must take place once a month. Is it appropriate for an employer to say to the committee: "That's fine, but your meetings are going to last 15 minutes," or "Yes, I will do what I have to do under this act and pay for your time while you're there, but make sure it doesn't last more than 15 minutes"?

Hon. D. Lovick: The employer is on the committee. Doesn't that answer the question?

[4:00]

C. Hansen: The employer has one vote. If the employer chooses to put himself or herself on the committee as one of the management reps . . . . That's not required, but if he chooses to do that, he still has only one vote out of four. Here you have a committee that by majority vote is going to determine how it operates. If you wind up with a committee that says, "We are going to have meetings that are going to be one day long every month," and you wind up with two people on the committee saying, "Yes, that is so," and two other people saying, "No, they're going to last 15 minutes . . . . "

The minister would love to look at this legislation in the context of a perfect world. What I'm trying to say is that there are problems with the way this legislation is worded, in terms of some workplaces where these are going to be a problem and there is no recourse for them to solve it. The onus for the problem winds up squarely on the lap of the employer to deal with it, and yet there's no recourse to deal with it. That's where I'm coming from on this.

Does the minister envision that there are going to be any guidelines coming down from the WCB or from the Ministry of Labour in terms of how these committees should function, how long meetings should take and where they should be held? Are we going to see anything more than

section 15,

section 131, which basically says: "Go out and have fun. Sort it out yourself"? Now, wouldn't it be nice if everything happened that way? Does the minister envision that there's going to be any kind of guidelines to flesh out what's in

section 15,

section 131?

Hon. D. Lovick:

Section 15,

section 131, which we are ostensibly discussing now, says: " . . . a joint committee must establish its own rules of procedure, including rules respecting how it is to perform its duties and functions." If they can't do that, or if what they come up with is somehow dysfunctional, very clearly the board might have to intervene. My suggestion is that that is highly unlikely. Management still has the right to manage. That's not taken away from in terms of this. We're talking about a joint committee to deal with occupational health and safety.

Again, with all due deference, the member continues to suggest that these people -- somebody, at least, on the committee -- will be hatching a plot to make mischief, to cause problems. The obvious question is: why?

Remember, this is the same member who, in second reading debate, said you really don't need occupational health and safety legislation and regulations and red tape for the small workplace, because the modern management culture is: "We're all in it together. We cooperate; we're all pals. We don't have any of these problems. We don't need you to regulate and tell us what to do." Now, in every single

section of the bill, he is telling me, "Oh, we've got to be a little bit careful here," because those happy workers whom he spoke on behalf of not too many days ago might in fact not be so happy and might be doing other things. The contradictions are immense and problematic for me. Thus I explode as I do.

It would seem to me that this is a good opportunity for me to suggest that, for all parties concerned, a very brief recess might be in order at this point, if the members opposite agree.

The committee recessed from 4:05 p.m. to 4:14 p.m.

[W. Hartley in the chair.]

The Chair: I call the committee to order. We are on

section 15,

section 131 of Bill 14.

section 15,

section 131 (continued).

C. Hansen: I just want to clarify something the minister said before we took that short break. If there is a disagreement that surfaces under

section 131 in terms of, for example, how long committee meetings should take place, am I right in understanding what he said earlier -- that in the event of that kind of a disagreement where there is a two-two vote in terms of what should transpire, the recourse is to the board; the board will give direction in terms of what is appropriate?

Hon. D. Lovick: Yes. The answer is that the ultimate recourse, at least, rests with the board. One would dearly hope that it wouldn't have to go quite that far, but the ultimate recourse does indeed rest there.

[4:15]

Section 15,

section 131 approved on division.

section 15,

section 132.

C. Hansen: This, again, is an area where we have the potential of an enormous workload on the board. "If a joint committee is unable to reach agreement on a matter relating to the health or safety of workers at the workplace, a co-chair of the committee may report this to the board, which may investigate the matter and attempt to resolve the matter." Now, I'm wondering if the minister is aware of any other jurisdiction that has health and safety committees, or on the basis of previous B.C. experience . . . .

In the case of previous B.C. experience, is this provision there -- and also in the case of other jurisdictions? Could the minister comment on the number of times that the board is asked to resolve these types of issues?

[ Page 8135 ]

Hon. D. Lovick: I can't give the member a specific answer to that question -- at least, I can't give him specificity -- but I can tell him that this did indeed come from the royal commission, if that's any help.

G. Abbott: I'd like to pursue

section 132 a little too. I guess this would relate to an experience I enjoyed for several years of being the chair of the Okanagan Mainline Municipal Labour Relations Association. What one used to find at certain cycles in the collective agreement between the employers and the employees is that, at some points, the number and nature of grievances against the collective agreement would emerge. What I want to be assured of here is how we can be certain that this feature could not be abused by one side or the other in this situation to, say, take a lot more matters, or attempt to refer more matters, to the board than one might reasonably expect them to do.

Hon. D. Lovick: I think that the comfort I can give the member is simply in the last line of this section. He will note that it says there, "report this to the board, which may investigate," and the emphasis is on "may investigate." Anything that is demonstrably beyond health and safety and is, rather, about contractual matters or work activities that are grievable, I would think the board would rather summarily dismiss or at least recognize very quickly and say: "Sorry, this has no place at this table."

G. Abbott: Actually, I'm not personally satisfied that disputes would resolve themselves that quickly or easily. Frequently one runs into disputes that may appear to have a legitimate safety element associated with them, even though in the normal course of events they might be resolved through means other than referral to the board. We will only see this through experience with this bill, I presume -- whether in fact it becomes an object which is abused or not.

In the event that the board agrees to investigate the matter and presumably delivers a report back to the committee, there will be some expense involved in resolving the matter. Does the determination of who pays for that investigation and report . . . ? Is that determined by the report that is in fact rendered by the board? If the board found that the employer had failed to honour his side or that the union had failed to demonstrate a case, would that in turn determine who paid the cost? Or will the cost be borne in every case by one or the other of the parties?

Hon. D. Lovick: The answer to the question is that the board pays, and that's all.

G. Abbott: The board will pay in every instance? Well, I'll leave it to others who are more knowledgable. Does that mean that the public of British Columbia pays? Or is the board funded through some mechanism other than the consolidated revenue fund?

Hon. D. Lovick: The operation of the board is funded by employers' contributions.

C. Hansen: Actually, I will allow this to go ahead, because my question was redundant.

Section 15,

section 132 approved on division.

section 15,

section 133.

C. Hansen: This

section pertains to written recommendations to an employer and written requests for a response from the employer, various obligations that are set out whereby the employer must respond within certain time frames, and that type of thing. In the context of the four-member committees, I don't see that there are things in here that have a great deal of problems, other than issues we discussed before that pertain to the requirement that the board has to investigate and various things like that, which will add to the cost.

But I do have some real concerns regarding how this particular

section impacts where you have a single health and safety rep, who, given

section 15,

section 139, is given the same powers as the committee of four. Here you are talking about a health and safety rep who is selected by the non-management workers in a workplace that has between ten and 19 employees. Here we are giving that one person unilateral power to put some enormous requirements on an employer to generate responses within certain time frames and things like that.

Could the minister comment on the fact . . . ? We've talked about the fact that this is going to add red tape and bureaucracy and process to employers, and I think this is one of the areas where that is clearly evident. If the minister could comment.

Hon. D. Lovick: The function and responsibility of the single-person safety rep is, to the greatest extent possible, to mirror the functions of the safety committee. There is a caveat however, in that description of the one person: that she or he carries out the duties -- and I think I quote it correctly -- to the extent that is reasonably practicable. That, I think, is the caution and protection, if you will, that the member is looking for.

C. Hansen: I think the

section that the minister is referring to is

section 15,

section 139(3): "To the extent practicable, a worker health and safety representative has the same duties and functions as a joint committee."

Okay. But in that regard, it doesn't say that if you have an employer -- again coming back to the imperfect world that the minister doesn't like me raising from time to time . . . . But you wind up with a safety rep in a small workplace making unreasonable requests of the employer, under

section 15,

section 133. What I don't see is any provision that gives the employer the ability to deal with a situation where a safety rep may be a little too zealous -- maybe that's the word -- in cranking out requests to the employer for written responses.

Hon. D. Lovick: First, I appreciate the question, and I think it's valid. The point to note is that the royal commission's recommendations had stated that it should be a duty for the board to investigate and attempt to resolve; i.e., the words were "the board must investigate." Because of the possibility of misuse of this provision by either employers or workers -- for reasons beyond occupational health and safety, let us say -- the legislation has been drafted to make the investigation by the board permissive -- i.e., the board may investigate. I think that is the protection against that one person, as you say, being mischievous or making unreasonable demands of the board.

C. Hansen: That certainly explains how the board is protected in that situation, but it doesn't describe how the employer would be protected in that case. You can visualize a situation where an employee who is elected as a safety rep is mischievous. We like to think those things don't happen. Certainly they don't happen in the perfect world.

But it's not even a case of being mischievous; it's just someone who really takes their responsibilities far more

[ Page 8136 ]

seriously than is reasonable or practical. Yet there doesn't seem to be any recourse in here for the employer. I appreciate that there is recourse for the board, but there isn't one for the employer.

Hon. D. Lovick: I understand now. What we're talking about is the case of the anal-retentive safety committee rep -- right? That's what we're on to now; we're on to that. The answer to that particular individual is really simple and straightforward. Echoing the words of Nancy Reagan, the employer merely has to just say no.

C. Hansen: I wish it were that simple, hon. Chair. That's not the way this

section reads, though. If there's a written request for a response from the employer, the employer must respond in writing to the committee within 21 days -- or, in this case, to the safety rep. It's not a prerogative of the employer to just say no.

I guess the implications are that if the employer does not respond before the end of the twenty-first day, the employer must provide within that time a written explanation for the delay, together with an indication of when the response will be provided. Again, that does not give the employer the ability to say no. My reading of this is that the employer has to respond to every one of those written requests, or he's in violation of this act.

C. Hansen: This is a question that perhaps I should have raised under a previous section, and I could certainly raise it under

section 139. But I'll raise it here in this context, because we're on that subject. How would a group of workers go about removing their safety rep or their two people selected to the safety committee, in the case of a non-unionized workforce?

Hon. D. Lovick: Unlike the Legislature, hon. Chair, I gather that this bill has not provided for recall, and perhaps this is a time when one needs it. Given that the committee has responsibility for establishing its own terms of reference, or for the creation of the worker rep, it would seem to me that it's not difficult to imagine a scenario in which the other workers at the workplace would say: "Wait a minute. We simply don't have confidence in this individual, and therefore he or she no longer speaks for us." They can pass that on to their employer, or they can send the message to the board or whatever. I think that would be the short answer and the easy way to solve the problem.

C. Hansen: I appreciate that I'm pushing the limits of what fits into this particular section, but it's a logical time to follow up on that question. I could ask it either now or later, so I'll ask it now. I gather that in addition to there not being any provisions for recall, there are no provisions for a term that these individuals serve for. Is that correct?

Hon. D. Lovick: There is not necessarily a term, but again, that would be something that could be determined and decided by the committee as part of its establishment of the rules and procedures.

[4:30]

Section 15,

section 133 approved on division.

section 15,

section 134.

C. Hansen: We've got two sections coming up that I think work somewhat in tandem when we start talking about the costs. I know that my colleague from Okanagan-Vernon is going to have some issues to raise, which I think fit into both these sections.

Certainly

section 134 is where we're talking about the member of a joint committee being entitled to time off from work for the time required to attend meetings of the committee and for other time that is reasonably necessary to prepare for meetings of the committee and to fulfil other functions and duties of the committee. I was wondering if the minister could elaborate. I guess it's an extension of some of the questions we had in the previous section, and that is, in terms of the time required to attend meetings, I gather there are no limits and no definition to what that may mean.

Hon. D. Lovick: It's essentially whatever works in the workplace. It could conceivably be a ten-minute meeting; it might be an hour-long meeting. I suppose that in some extreme cases, it could go beyond. But I think we need to remember that, again, managers still have management rights, and they are not obligated, I guess, to respond to any requests for an extension of the meeting.

C. Hansen: In the case of a unionized workforce, is it not unrealistic that the definition of what's reasonably necessary to prepare for meetings -- that issues like that could become labour relations issues in many workplaces in British Columbia?

Hon. D. Lovick: I don't think I would call them labour relations issues, but they might indeed become bargaining issues at some point. Certainly that is the case in a number of existing contracts out there, largely in the industrial sector where safety committees are part of a collective agreement that has been established. I know of a number of cases.

Occupational healthy and safety, however, is just another part of business, in effect -- in the culture that we anticipate and are trying to develop, at least. Like other business functions, I would assume that it would be treated as such. It wouldn't be treated as some kind of boondoggle where you go and have committee meetings because it's a way to escape from the job, or something. I'm sure that all parties privy to the activities and concerns of an occupational health and safety committee would want to take that seriously and say: "We want to do our jobs to the best of our abilities, but we don't see the safety committee as a substitute for work."

C. Hansen: If these become labour relations issues in a collective bargaining process, do we not face the prospect of having two totally independent bodies trying to give definition to the term that's in this section? On the one hand, we've got the Workers Compensation Board trying to give definition to it. On the other hand, this is conceivably something that could wind up before the Labour Relations Board, which is

[ Page 8137 ]

also trying to give definition to what a reasonably necessary time to prepare for meetings of this nature is. Does the minister share that, or does he see it as distinctly in one purview or the other?

Hon. D. Lovick: The latter, Mr. Chairman.

C. Hansen: I would assume by that that any definition, any

interpretation of this, is clearly in the purview of the Workers Compensation Board and is not in any way in the purview of the Labour Relations Board. Is that fair?

Hon. D. Lovick: It's true unless and until the Labour Relations Board were to decide otherwise.

C. Hansen: Is it possible that when we start talking about workers, where we've got, "Time off . . . is deemed to be time worked for the employer, and the employer must pay the member for that time . . . ? " Does this provision mean that the members of the committee would be paid at regular rates? Or would they be paid at overtime rates?

Hon. D. Lovick: It depends entirely on whether the work done by the committee is done within normal working hours or in hours that are beyond, in which case it would be overtime.

C. Hansen: Does the employer have the power to direct that?

Hon. D. Lovick: Yes.

C. Hansen: In terms of the time that is reasonably necessary, you had talked about it in the context of a unionized workforce. We could wind up defining this through a collective bargaining process, or there could be recourse back to the board. Does the minister anticipate that there will be directives coming out from the WCB to give definition to what is reasonably necessary when it comes to time to prepare for meetings?

Hon. D. Lovick: I was discussing it with staff to make sure that I understand what discussions have gone on with the board. I am advised that the board has not discussed this, but the assumption is that some kind of policy manual may well, and in all likelihood will, be put together to deal with this and other issues arising from the legislation.

C. Hansen: I think my colleague from Okanagan-Vernon would like to raise some questions in terms of how these costs may impact on particular organizations. With that, I'll turn it over to her.

A. Sanders: I rise to look specifically at sections 134 and 135. We're doing 134 at this time. Has the minister recognized the direct cost that will be siphoned by this bill from the education of kids? Has his ministry worked out those figures to ascertain the cost of Bill 14 to education services?

Hon. D. Lovick: I'm sorry, Mr. Chairman, but as the question is phrased, I have no idea what the member is referring to. If she would like to perhaps elaborate . . . . Given that schools already have occupational health and safety programs in place, I wonder what it is she's referring to.

A. Sanders: Well, as the minister is aware, there is a fair amount of duplication between the legislation for the WCB occupational health and safety regulations and the items that come in under Bill 14. Specifically in

section 134, where a member is: " . . . entitled to time off work for (

a) the time required to attend meetings of the committee, and (

b) other time that is reasonably necessary to prepare for meetings of the committee and to fulfill the other functions and duties of the committee . . . . " In school districts which have previously not had to have staff provide these kinds of periods of time, and considering that many of our 1,700 schools have in fact 20 or more employees in many cases -- especially in the lower mainland -- this bill will have a very significant impact on the budgets of school districts and boards. Has the minister reviewed any of these implications?

If this money is coming from school boards, it is not being budgeted under the estimates of Education and, thereby, will have to come out of classroom services.

Hon. D. Lovick: I think the member is offering, again, a hypothetical case. It seems to me that schools tend to operate to a considerable degree on the basis of a cooperative workplace. Teachers meet outside their classroom duties for a number of different purposes and functions. To accommodate and incorporate occupational health and safety as one of those duties, I don't think is an entirely new responsibility. Indeed, I suspect that the responsibility is already being addressed in some regard. Therefore this ought not to confer a huge, new responsibility.

We have made very clear in all of the things we're talking about -- the WCB regulation, as well as this legislation which is the statutory authority for regulation -- that duplication is to be avoided. Certainly when we discover that duplication exists, the board will take every reasonable action as expeditiously as possible to ensure there isn't duplication.

A. Sanders: Well, I'm very glad to have brought this point up, because I don't think the minister has really worked this one through. I think it's a very important one; it certainly is to the individuals who work in school districts and are responsible for and charged with the distribution of the money -- to hopefully keep that in the classrooms.

For the minister's benefit, there are no regulations specific to school districts. My cases, in fact, are not hypothetical at all. I've asked the school districts to look at the implications of Bill 14 as it will affect schools, and many of the schools are now getting back to me. In one specific school district that has 12, 13, 14 schools -- a small district compared to the size that one would consider school districts to be when we look at other school districts such as Vancouver -- projected additional costs after the implementation of Bill 14 are as follows.

For the release time for FCTA members -- these are the teachers on call and the employees, both of whom will require seven members -- times ten meetings, times 0.5 days at $200 a day or $279 a day, depending whether they're a teacher on call or an employee, there are projected costs of $7,000, in addition to $9,765. For the training component, the teacher-on-call group would be $2,240; the employee group, again seven members at 1.6 eight-hour days, at $279 a day, is $3,129 -- for a total of $22,129. That will have to come out of the classroom services that were provided last year, prior to the implementation of Bill 14.

Release time for the UBCJA members will be an additional $1,600, and the training for those four members will be an additional $640. Release time for administration will be $7,000; $6,300 is for the employee fraction, and that does not include the training. The total for direct costs is $23,240. Total direct and indirect costs -- meaning not just the meetings but

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also the training aspect -- are $46,589. Also included in this bill and not costed in here will be prep time, clerical help, travel, expenses and replacement costs.

This bill does not provide any recognition for low-safety-risk sites, and all workplaces are classified in the same category as if we were classifying a school as a sawmill or a mine. I believe that the school boards did in fact make a presentation to the Royal Commission on Workers Compensation on this issue. I think it is a very important issue.

If we start looking at the potential costs of Bill 14 to the school system, in a province with 1,700 schools -- again, I don't have the figures yet -- we could have a projected cost as high as $7 million for the implementation of Bill 14, in order to put in the safety standards in terms of the training and time off and educational leave prospects. This is an absolutely huge cost. It doesn't even include the potential $7 million we will have for possible vaccination for hepatitis within the schools that comes under the health and safety regulations passed on April 15.

We are looking at very large costs that Bill 14 will bring in, that will take money directly out of the classroom and directly away from teachers and students. My question to the minister is: what investigation and what explanations does his staff or the minister himself have to legitimize these kinds of removals of very large sums of money from an education system that is already suffering under the present government's rationing of education dollars?

The Chair: I remind members that we're dealing with

section 134 of Bill 14.

Hon. D. Lovick: Mr. Chairman, I think you're right to remind us of what

section 134 is.

As I listen to the member's iteration of numbers, I am reminded of Swift's A Modest Proposal , where you start from a particular proposition and then you say: "Hey, if that's true, then this is true and this is true and this is true." It gets bigger and bigger and more bizarre and more outrageous. It's called reductio . . . . Quite frankly, I don't think it works very well here, though it worked wonderfully in Swift.

I suspect that teachers in schools would recognize that the workplace is not always benign, even if we like to believe it is. But in occupational health and safety matters, teachers are workers, as are janitors, staff and secretaries. Like anybody else, they are subject to the same stresses, strains and injuries, frankly. What we're doing in this legislation is trying, as I've said many times now, to change that culture, to create a partnership where workers and employers are going to endeavour to ensure that the workplace is safe, so that we don't all pay for that unfortunate incidence of accidents and injuries and, in some cases, worse.

[4:45]

Frankly, I can't imagine that carrying out the intent of this legislation would necessarily mean that all schools would suddenly have to find an extra huge amount of budget dollars to do these things. There is some flextime within contracts, and all workers and all employers recognize that. Part of one's obligation in running a business is to do something to protect the workers. Sitting down at 3:30 once a month on a Tuesday afternoon to talk about issues of common concern regarding occupational health and safety does not seem to me to confer a huge obligation on the education system.

Indeed, I suspect that most people working in the education system would probably say: "Good idea; we will do our bit to cooperate." I will of course discuss this matter with the Minister of Education, but I think what is being projected here, quite frankly, is a very extreme scenario. I find it hard to take that very seriously.

A. Sanders: Well, I would appreciate the minister taking it very seriously. In fact, I consider it a very serious issue. We're in a circumstance right now where we do not have the finances to educate our kids properly in B.C. Every dollar that is coming out of the classroom and being put into something else, such as people sitting around talking about health and safety, is a very serious problem. I would very much appreciate the minister sitting down with the Minister of Education prior to the passage of

section 15, sections 134 and 135, or the bill in total, and looking at the implications of this bill on the average classroom in B.C. There will be a significant impact, and there will be dollars that come out of direct services to kids from Bill 14 that weren't coming out of them last year.

There's no way the minister can say that is not the case, because schools are now being classified under Bill 14 in a way that they were not being classified last year.

If we are removing those moneys from schools, it is our duty in this House to inform the people who will be responsible for those decisions: specifically the secretary-treasurers, who haven't even heard about Bill 14 and are quite considerably alarmed when they recognize yet another thing that they're going to be asked to do in terms of removing money from classrooms; and the school trustees, who are in the end the employers of our teachers in British Columbia. I think this is a very important point. I think it's been overlooked. I think by doing some minor investigation, there are a number of numbers . . . .

The minister can call that reductionism, but I think that's overstating a little bit, and I think it's really avoiding what in fact is the point.

The point is that this is an important issue. At this time, if it's going to take that much money out of an education budget that has already been cut quite significantly over the last seven years, then this is something we need to know. It's something that needs to be dealt with. It's something the minister needs to do some horizontal thinking on with respect to looking at what the Minister of Education thinks and what figures he can generate from the secretary-treasurers of the districts.

These individuals are very concerned about Bill 14, and they will not appreciate the minister's view that this is no big deal and that they can sit down at 3 o'clock and work for 15 minutes or half an hour or whatever it is he's suggesting. It may be quite different in some school districts. I'd like the minister's comments on that.

Hon. D. Lovick: I'm going to respond once. I'm not going to engage in some debate about what I think is a doomsday, extreme, hypothetical scenario. I'm merely going to respond by saying that I'm struggling mightily with listening to the member wrap herself in the mantle of the great defender of education, when she and her colleagues on that side of the House applauded federal government cutbacks of some 40 percent to health, education and social services in this province. They have also gone on record, as recently as a couple of weeks ago at their convention, to talk about cutting the size of government.

Interjections.

Hon. D. Lovick: I'm struggling just a little bit over the argument the member is presenting on

section 15,

section 134 -- in order that I will be in order, Mr. Chairman.

What we're talking about is workplace health and safety. For the member to suggest that workplace health and safety is

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some kind of luxury -- some kind of frivolity that really doesn't matter in that large workplace called the school system -- I think is unacceptable. Certainly I don't accept the charges that are being made.

A. Sanders: Again, the minister has digressed quite a bit from

section 15,

section 134, so I'd like to bring him back on to that. Specifically, most of what he said is blatantly untrue. I think he's kind of praying for this mountain of difficulty to go away, and what he really needs is the courage to climb it.

What we have here is a circumstance that I am simply asking the minister to look into. I'm asking him to see, with his colleague the Minister of Education, whether that minister -- who probably hasn't even thought about it -- thinks that Bill 14, specifically sections 134 and 135, could create quite a significant cash draw from the classroom into this legislation, money that will not go to kids. Things that are being done already . . . . They will not increase the safety of the workplace. In fact, all they will do is create more bureaucratic red tape and take money out of the classroom at a time when it is needed.

What I would challenge the ministry to do is to bring that information back to this House and allow the Minister of Education to have some input here -- from the members who will be doing the actual work, from the secretary-treasurers -- and to say what the cost to education will be. What will be the direct cost of Bill 14 to the 1,700 schools in British Columbia, to the 60 school districts in British Columbia? Will there be, in fact, a significant cost? I think there will, and I challenge the minister to prove that that won't be the case -- other than saying: "Don't worry about it, hon. member.

We'll deal with it." I'm not here to be patted on the head. I'm here to be given an answer to a question that I feel is important.

Hon. D. Lovick: For the record, Mr. Chairman, the member didn't ask a question. However, I answered it, and I said I would discuss the matter with my colleague the Minister of Education.

A. Sa