1987 Legislative Session: 1st Session, 34th 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)

WEDNESDAY, MAY 13, 1987

Afternoon Sitting

[ Page

1115 ]

CONTENTS

Routine Proceedings

Oral Questions

International Tillex Enterprise Ltd. Mr. Sihota –– 1115

South Moresby national park reserve. Mr. Miller –– 1115

Ms. Edwards

Ms. Smallwood

Mr. Williams

Mr. Guno

Proposed sales tax on food. Mr. Clark –– 1116

Tabling Documents –– 1117

Teaching Profession Act (Bill 20). Committee stage. (Hon. Mr. Brummet) ––

Mr. Jones

Mrs. Boone

Ms. Edwards

Mr. Rose

Ms. A. Hagen

Mr. Clark

Mr. Sihota

Appendix –– 1140

The House met at 2:09 p.m.

Prayers.

Oral Questions

INTERNATIONAL TILLEX ENTERPRISE LTD.

MR. SIHOTA: Mr. Speaker, I have a question to the Minister of

Finance. The International Tillex purchase of British Insurance

Management was subject to an independent valuation, but this was never

provided to the exchange. Has the minister determined why this was not

done?

HON. MR. COUVELIER: Mr. Speaker, I have before me now the

considerably expanded list of the sequence of events surrounding that

particular firm. I'll have to research the voluminous material here to

determine the specifics of the question. But dealing with the general

question, the member for Esquimalt–Port Renfrew is obviously zeroing in

on the activities of this particular firm.

I'd like to suggest that some of the information in the question

period and the answer to the ministerial statement yesterday contained

inaccurate information which, to my regret I suspect, has been

reproduced and had a wider distribution, and as a consequence of that

inaccuracy it seems to me we are embarked on a course here that has the

potential to do some considerable damage to the credibility of the

organization of the Vancouver Stock Exchange, and to the credibility of

its ability to monitor its own affairs.

Mr. Speaker, I am very happy to share, with any questioner who has a

genuine concern, a full set of details and facts as they are available

to me, and I will undertake to supply those expeditiously in every

circumstance. I think the point of issue here is not the question of

how a particular item might have been handled, but rather about one of

process and of correctness, if you like. I'm very concerned that by

embarking on this course of action with this stream of questions, we

can go on forever and do nothing but damage to the efforts we're trying

to build regarding the credibility of the Vancouver Stock Exchange, its

usefulness as an instrument of economic recovery, and a variety of

things which I'm sure every citizen of the province would support and

endorse.

I cannot answer that specific question that's put to me without

reading the material before me; it's too specific. I do undertake to

provide that kind of information. But I deplore this kind of dialogue

in the public arena, in which inaccurate information is reproduced to

this extent, and damage is subsequently done to the institution itself.

MR. SIHOTA: Mr. Speaker, a question to the Minister of

Finance. Right from the beginning this government has been trying to

cover up the basic facts and its own incompetence in failing to

investigate the VSE.

MR. SPEAKER: Order, please. Would the member put his question.

MR. SIHOTA: The question is this: has the minister determined why the

Vancouver Stock Exchange decided only to fine the lead brokers and not the brokerage

houses of Canarim and Continental Carlisle Douglas in this scam?

HON. MR. COUVELIER: Mr. Speaker, there could be no better

illustration of my concern about the damage that can be done in this

House than with questions that are not solidly based on fact and which

clearly point to the credibility of individuals in our business

community and of the institution that is at the very basis of our claim

for an international financial centre in the city of Vancouver and in

the province of British Columbia. I think it's critical that if we are

to have questions put in this House, they should at the minimum be

based upon fact. I undertake to provide an adequate level of

information to the opposition so that those questions can be based on

fact and so that some credible treatment of the truth of the matter can

be made here.

I obviously can't speak to the specifics of an individual firm or

group of firms, as has been suggested here, without going back to staff

for more information. But I've got sufficient information here to

indicate that the comment that a firm that only had $18,000 in the bank

was bidding on a $10 million firm is inaccurate. In fact, that firm had

over $100,000 in the bank when it made that offer, and a public

disclaimer was made in a press statement, which said that there was a

requirement by the Vancouver Stock Exchange that there would have to be

considerably more information provided before that transaction could be

approved. That's here and it's fact, contrary to what was disseminated

yesterday in the media at large. We are doing damage, my friends, to

the very institutions we are here to try to nurture and protect.

[2:15]

MR. SIHOTA: If there's any damage being done in this case,

Mr. Speaker, it's being done by the minister, who obviously does not

understand that it's his job to make sure that the VSE is clean. We on

this side of the House want to make sure that its operations are clean,

and I will share with the minister the January 9 disclosure statement,

if he wants it, which shows $18,000 in cash assets. The minister talks

about facts. The VSE officials admitted that they knew that the

principals of Tillex and BIM were one and the same, and yet that fact

was not disclosed to investors on the market. Has the minister

investigated as to why that fact was not disclosed?

HON. MR. COUVELIER: I'm not prepared to concede the fact. The

information before me at the moment is that International Tillex was

formed in 1983. The first time the BIM takeover crosses my

chronological sequence of events appears to be some time in March of

1985. Every publicly traded firm daily has cash transactions, business

transactions, ownership transactions. At any time I can be asked to

identify who the principals may be. Surely no sensible person would

expect that those kinds of answers can be given expeditiously.

What I'm trying to point out is that the continued focus suggesting

some kind of inappropriate behaviour on the part of appointed or

elected officials is inappropriate and unfair to the whole basis of our

claim for an international financial centre. It is important that the

public have some confidence in our institutions.

SOUTH MORESBY NATIONAL PARK RESERVE

MR. MILLER: My question is to the Premier. It appears we're

heading down that well-known road to confrontation with regard to the

national park reserve in South Moresby.

[ Page 1116 ]

Could the Premier advise whether the government

really intended that the proposal put forward for $100 million a year

and ten years continued logging was a realistic proposal that could be

negotiated, or was that proposal put forward in terms of trying to

subvert negotiations with the federal government?

HON. MR. VANDER ZALM: There's no confrontation. As a matter

of fact, the negotiations between ourselves and the federal government

are very amicable. I'm not prepared to say what the figures are,

because we're negotiating with the federal government on the figures

and the considerations that need to be provided with respect to the

establishment of a park. Keep in mind, as I said yesterday, that

there's a great interest nationally and internationally in a park on

the Queen Charlottes, but we as legislators and members of this

assembly need to be concerned as well about the jobs of the people in

the area — the loggers, the logging company providing the jobs; the

community of Sandspit, and what could happen to it if those jobs were

to disappear suddenly. Somebody had best protect those people working

there and make sure their interest isn't forgotten.

MS. EDWARDS: Supplementary to the Premier. Obviously, Mr.

Premier, the Minister of Tourism (Hon. Mr. Reid) does not see a park on

South Moresby. Is that not really the government's position in

bargaining?

HON. MR. VANDER ZALM: Absolutely not, Mr. Speaker. As

mentioned yesterday as well, we have taken most of the initiatives in

that regard in the last while. We've had good cooperation from the

federal government. We're working very closely together on this, as we

are on a number of things. I think we have a lot of common interests.

But let me repeat: we must look after B.C.'s position; if we don't,

things might be overlooked which are extremely important to the people

on the Queen Charlottes.

MS. EDWARDS: To the Premier. The quotation I have that the

Minister of Tourism said was that logging, mining, fishing and tourism

will operate side by side, and South Moresby will be the place we'll

prove it. Is that not the position of the provincial government?

HON. MR. VANDER ZALM: Mr. Speaker, I can't verify the item

from the newspaper, or whatever the quote is. But right now we do have

these activities going side by side, and obviously there would be some

change made. However, we would still have logging on the Queen

Charlottes, but elsewhere on the Queen Charlottes.

MS. SMALLWOOD: Supplementary to the Premier. The federal

minister indicated in February that he wasn't interested in acquiring

land on which the forest had been clearcut. Can the Premier advise us

how this area could possibly be defined as a park after this sort of

logging which the government proposes has taken place?

HON. MR. VANDER ZALM: Mr. Speaker, the government took the

action of putting a moratorium on the issuance of cutting permits. So

in fact we have taken that step, and that's where it stands now.

MR. WILLIAMS: Further to the Premier, Mr. Speaker. Can the

Premier advise the House if their compensation requests accommodate the

amounts the timber companies see as necessary in terms of compensation

to them?

HON. MR. VANDER ZALM: There are numerous considerations

obviously. The first is the loggers in the area, the people employed

there, and how we protect them. The communities, particularly Sandspit,

are dependent on that activity and how we protect the community. The

company certainly has an interest in the area, and they've gone in

there in good faith thinking they could continue their operation for

some years to come. They certainly must be deserving of some

consideration and protection. There's also British Columbia as a whole.

If we give up a considerable resource in order to provide a national

park which is of interest to people throughout Canada — and elsewhere

in the world, perhaps — then there too needs to be some consideration

for the alienation of that resource.

MR. WILLIAMS: So the Premier is saying that the government wanted money for the province and money for the companies as well?

HON. MR. VANDER ZALM: I can assure the hon. member that

British Columbians can feel assured that they have good negotiators

acting on their behalf and that we're protecting the interests of

British Columbians.

MR. GUNO: This is further to the Premier. In your answer you

mentioned the interests of the people in the Queen Charlotte Islands. I

want to raise the issue of the interests of the Haida nation. Will the

Premier explain to this House that given the Haida nation's legitimate

role in this matter, why hasn't he or any of his ministers scheduled a

single meeting with the Haida nation to seek their advice or to inform

them about the negotiations?

HON. MR. VANDER ZALM: I'm sorry, what was the last part?

MR. ROSE: Why haven't you talked to the Haidas?

HON. MR. VANDER ZALM: I have talked to a representative of the Haida community.

SOME HON. MEMBERS: Who?

HON. MR. VANDER ZALM: Miles Richardson.

AN HON. MEMBER: He is Mr. Haida.

HON. MR. VANDER ZALM: Maybe three or four days ago.

AN HON. MEMBER: Did you listen?

HON. MR. VANDER ZALM: I listened to him.

PROPOSED SALES TAX ON FOOD

MR. CLARK: I have a new question for the Premier. Has the

Premier expressed any opposition to the federal government regarding

the proposed federal sales tax on food?

[ Page

1117 ]

HON. MR. VANDER ZALM: Mr. Speaker, if I understand the

question correctly, it was: have you talked to the federal government

about the sales tax on food? No, we've not talked about the sales tax

on food.

HON. MR. VEITCH: Mr. Speaker, I beg leave to make an introduction.

Leave granted.

HON. MR. VEITCH: Today, for sure, in the gallery are two very

distinguished and important visitors from Senegal: His Excellency

Abd'el Kader Fall, the ambassador; and Mr. Balla Dia, the counsellor of

the embassy of Senegal in Ottawa. I would ask this House to bid them

welcome.

One further introduction: from the Willingdon Mennonite Brethren

Church in Burnaby, Pastor Carlin Weinhauer is here today in the

gallery. I would ask the House to bid him welcome.

MR. HARCOURT: Mr. Speaker, I rise under the provisions of

standing order 35 to ask leave to make a motion to adjourn the House

for the purpose of discussing a matter of urgent public importance.

The moratorium on logging on South Moresby is about to lapse. The

resumption of logging appears imminent, should the bilateral

negotiations with the federal government collapse. As a result of the

government's ultimatum, the opposition is concerned that the government

of British Columbia may have taken a position regarding compensation

and cutting rights that is impossible for the federal government to

accept. I move therefore that this House do now adjourn for the purpose

of discussing the park reserve on South Moresby.

MR. SPEAKER: I would tend to want to reserve my decision on this, but I will hear from the government House Leader before I make a decision.

HON. MR. STRACHAN: I think Your Honour should be aware of the

fact — and so should the Leader of the Opposition, if he's read the

newspaper articles on this issue which have been going on since March

17, when we issued the first cutting moratorium, and then a press

release that was made by the hon. federal minister, Mr. McMillan, and

me on April 8, 1987 — that we agreed, and it's been reported many times

and widely, that all discussions would be done in camera. Therefore for

the government of British Columbia to enter into open debate on this

issue now would be stepping away from that commitment we had to the

Honour will take that into consideration when deciding.

Interjections.

HON. MR. STRACHAN: It's in camera, hon. member. It's a submission to the Speaker.

MR. ROSE: Mr. Speaker, I don't know whether it's erroneous or

not, but the hon. House Leader for the government suggested that this was all

in camera and couldn't be talked about while negotiations were going on.

We have been receiving information about a 24-hour ultimatum, and that is the

reason we felt, in terms of the position taken by the provincial government

vis--vis the federal government.... It's upon this point — the urgency

of the debate.

HON. MR. STRACHAN: To respond to that, the opposition would

have to tell us when they heard about the 24-hour moratorium. Was it

two o'clock yesterday afternoon, or six o'clock yesterday afternoon? If

it wasn't until six, then the 24 hours haven't expired.

Interjections.

MR. ROSE: Mr. Speaker, I know we don't need to have the

debate now, and I'm quite sure you're going to observe that in a

moment, but the information that we have is that the 24 hours lapsed at

six o'clock yesterday afternoon, and therefore this was the first

opportunity this House had to bring up this matter of urgency in the

proper order.

MR. SPEAKER: I thank both the hon. members for their

statements. The Speaker has not had an opportunity to review the

question — I just got a copy of it as we went into question period, and

obviously there were a lot of questions. So I would like to go back to

my chambers and study this and come back to the House in about one hour

with a decision.

[2:30]

Mr. Speaker tabled the 1986 annual report of the ombudsman.

Orders of the Day

HON. MR. STRACHAN: Mr. Speaker, I call committee on Bill 20.

TEACHING PROFESSION ACT

(continued)

The House in committee on Bill 20; Mr. Pelton in the chair.

section 30 as amended.

MR. JONES: Mr. Chairman, it's a pleasure to rise and carry on our debate in committee stage....

MR. CHAIRMAN: Hon. member, would you take your seat for just

a moment. Hon. members, would you please take your seats. If you want

to hold conversations, I would prefer them to be outside the chamber.

We'll continue with third reading of Bill 20.

MR. JONES: Mr. Chairman, I think that comment was very

appropriate as we discuss committee stage on the Teaching Profession

Act. We left off yesterday having approved the amendment on

section 30,

and there's just a short question or two on the

section as amended that

I would like to raise with the House.

Firstly, considering the conduct of hearings, I'd like to comment on

a

section that the bill is silent on. Perhaps the member for Prince

George North (Mrs. Boone) would be a better person to make this

comment, because she has long and strongly been a defender of the north

and rural regions of this province.

If we are considering hearings being held to discuss discipline of teachers, we have to consider the site of these

[ Page 1118 ]

hearings. The question arises, and perhaps the

minister, being from a rural riding himself, would be able to comment

if these hearings would be held in Vancouver — would he anticipate

that? — or would they be able to be held in regions throughout the

province so that witnesses and lawyers perhaps more readily can serve

their clients?

HON. MR. BRUMMET: Mr. Chairman, nowhere in the act does it

say anything about all the meetings having to be held in one place. I'm

sure that the member would not expect me to put into the legislation

all of the hearings that may come up. So it's open. I expect that the

council will use its good sense as to where the hearings should be held.

MR. JONES: My point was that the act is silent on that. I

guess it is an open question, and one on which the college will decide

the best procedure for its members.

One more question on costs, and I know this is another difficult one

–– I think we clarified some of these things yesterday — and I think

that if we clarify these kinds of things, we will prevent repetition of

these kinds of questions. I believe the minister indicated yesterday

that under these circumstances, if acquitted, the member's lost salary

will be reimbursed. I think that is in the School Act. With respect to

the costs that may be incurred as witnesses are asked to appear, I

believe the minister responded yesterday that the college would

presumably pick up those costs. But that was speculative, so we don't

know. With respect to legal costs, the minister indicated — or I think

the debate arrived at the conclusion — that perhaps the union or the

association, in serving its members, would pick up those costs. If

acquitted after the hearing, the member has many costs; these are on

top of costs that may have already been incurred during the school

board procedures. I would just like to ask the minister if in this

circumstance he would anticipate the costs of defending oneself against

a citation by the college being picked up by the college. We had an

answer on salary, and that was covered in the act: if a member is

acquitted, his salary will be reimbursed. But if acquitted, would the

costs of this legal procedure be picked up by the college?

HON. MR. BRUMMET: Mr. Chairman, I believe

section 22(1)(

k) says that the person may be required to pay some or all of the costs in

the case of an adverse decision. Therefore the costs where a person is

acquitted would appear to be paid for him.

Section 30 as amended approved.

section 31.

MR. JONES: Mr. Chairman,

section 31 deals with a member

failing to attend a hearing. I have some concerns about this section.

It is a short section, but not an unimportant section. It suggests that

if a member fails to attend the hearing, the council or the discipline

committee may, on proof of service of the citation, proceed with the

hearing, and may, without further notice to the person cited, make a

report of its findings or take other action it is authorized to take

under this act.

In drafting legislation, I think we have to consider checks and

balances; we have to consider fairness. I don't think anybody wants

loopholes created in this section, so that people can avoid appearing

at these hearings. But the

section that suggests that the council or

the discipline committee may, on proof of service, carry on seems to me

to leave a loophole on the other side. It seems to me that there are

legitimate reasons why an individual might fail to attend a hearing —

such things as transportation problems or confusion about dates.

Confusion about dates could be on the council's part or the member's

part. Accidents could occur, and I would think that because of the

telephone communication available today, it should be relatively easy

to determine if the non-appearance of the member is legitimate or

illegitimate. If it is legitimate, the hearing could still go on.

It seems to me that an amendment, perhaps after the word "citation,"

something to the effect that if it has been determined that there is no

reasonable cause for the member's failure to attend.... Then proceed

with the hearing and the kinds of actions the hearing may wish to take.

It seems to me that situations may occur.... I would like to ask the

minister: does he not agree that there can be legitimate reasons for

non-appearance?

HON. MR. BRUMMET: This is where I have to consider this in

the nature of nitpicking in order to debate a clause. It says "on proof

of service of the citation," so that before they can proceed with any

action with that, they have to assure themselves that the member was

notified and was clearly aware that the hearing had been scheduled for

that day and that time.

I assume that the member is once again forgetting that these are

colleagues, professional teachers, working on behalf of their members.

To write into this clause that the person must appear unless he has a

reason not to appear.... You know, there could be hundreds of excuses

that people could use. When the arrangements for the hearing are

made.... I don't think you can write into any clause "unless the member

has a good reason from his point of view not to appear." I am sure that

if the person were sick, or if something else happened, in order to

have a fair hearing the council would certainly make arrangements with

the member.

The other thing that the member seems to forget is that if they went

ahead without properly checking it out and the member appealed to the

Supreme Court, having that right, they would have to be able to assure

the Supreme Court that they made all reasonable and proper and just

efforts to have the member appear. So all that protection is built in.

To start writing in other clauses, to try to restate all of the rights

and privileges of appeal, right to the Supreme Court, that are

available to a member to assure that the process is fair and just, I

think, is asking.... I don't know what it's asking, quite frankly.

MRS. BOONE: I don't believe for a minute that it's necessary

to put anything tremendously difficult in this, but this could have

been addressed by merely saying that the member must respond within ten

days of receiving and present reasons as to why he or she cannot appear

at such time. This is generally something that is allowed most people,

and it protects not just them but the college as well because it gives

them a time-frame.

Otherwise somebody could respond 15 days later, or what have you.

But surely if you had within there seven or ten days and you said that

if you didn't hear from somebody within that time period, then you

could assume that they will be at that hearing. Without that sort of

thing in there.... It's not an uncommon thing to have in any kind of a

legal situation,

[ Page

1119 ]

and this is a legal situation. It is definitely a

legal situation because you are retaining counsel and you're expecting

the teacher to retain counsel as well. I can't understand why you get

so upset and say it's nitpicking. Surely it's not nitpicking to ensure

that both sides are covered. To assume that people are going on to the

Supreme Court is to assume that people have a tremendous amount of

money, and to go on to any kind of a court system costs a lot of money.

I don't think that people should be using that as a last resort when

you can put just a mere little phrase in that will clear it up.

MR. JONES: I have on a number of occasions complimented the

minister for his patience in going through this bill because I think

all members know this is a very important bill. I think it's important

that this process take place as well. Certainly had the kind of process

gone on that had gone on in other areas — for example, the bill that

dealt with the Sechelt Indian district government which I think went a

couple of years in the consultation process and worked properly back

and forth between the bodies there.... I think that one passed through

the House in a few minutes, and the opposition didn't feel it necessary

to enter into detailed debate on each section. In the review of the

legal profession act, certainly there was four years of consultation in

that act. I don't think the concerns and anxieties that surround this

bill were there. The Premier, were he standing on this side of the

House.... When he had an opportunity to look at the entrenchment of

native Indian rights in the constitution, he said that he had to know

what everything meant in that constitution with respect to that and how

much it cost.

I don't think we're going to that kind of detail in this one, but I

think we are reviewing each

section carefully and asking pertinent

questions, and the minister has been very helpful and, I think, is

going to allay some of the concerns that are out there in the province.

I think we're achieving that by this section. I would remind the

minister as well that no more than two days ago we received some eight

pages of amendments to this bill, and something like 40 sections have

been amended.

I think this is a difficult process for us all, and I think we do

want to do a good job, and we want to do a job on this side of the

House that I think the people of this province will appreciate and will

respect.

[2:45]

MS. EDWARDS: I'd just like to make clear to the minister that

I wonder again about recognition of the whole province. I have sat on

quasi judicial boards for a number of years. I don't know if you've

done that yourself, but if you have you will know that it's not simply

the person who is coming to a hearing on one day who has a flat tire

and arrives an hour or an hour and a half late; it is sometimes the

person who is coming to a hearing whose bridge washed out and can't get

there or can't make the communication to say that. I think it's clear

that the bureaucracy that goes on around these kinds of hearings

sometimes creates these problems.

If the minister recognizes at all that these kinds of things could

happen relatively easily, particularly in the rural areas of the

province, I think that it would be very clear that it's far more simple

to put a phrase in the legislation than it is to let this go to the

possibility that a person has to appeal to the Supreme Court because he

missed a hearing.

HON. MR. BRUMMET: I assume that when the person has the ability and

the right to appeal to the Supreme Court, that tempers the judgment of the group

that is making decisions. I cannot somehow or other visualize this hearing if

a person had a flat tire or who was fogged in at an airport and couldn't

make it, that they would say,"We're going to stick to the letter of

the law here," or "You were served notice, therefore we're going

to go ahead with the hearing." And then try to defend that in common sense,

in common law, before the courts? So the reason that I guess I perhaps indicated

some irritation here is because I assumed that the members had read other sections,

that we're not dealing with this

Section in isolation, that it is part of

the bill, and that all of these assurances that you want are already built in

for the members, without in each clause saying that a hearing shall be held.

But there's going to be.... We're not trying to set up a massive

communications network; we're trying to provide to the college the right

to hold a hearing. The assurances are all built in — the protection to the members

that you're asking for. They're not phrased in each one of the clauses,

but they're all built in.

MRS. BOONE: The minister is referring to the judicial system

there. I can point to the very system that isn't working. The example

that I'll give you is with regard to Fort Ware. Natives getting out of

Fort Ware come to a court date in Mackenzie. If they happen to be

fogged in and are unable to get there, unable to reach their

destination, a bench warrant is then issued for those people. So it is

not always fair. It is not always to assume that it is fair because the

Supreme Court is there for an ultimate decision. One must make sure

that written into these things are provisions so that people do have

fairness. Fairness does not exist in the legal system, and it certainly

doesn't exist in this legislation here.

Section 31 approved.

section 32.

MR. JONES: This is the

section that specifies actions that

the council or discipline committee may take after a hearing, such

things as dismissing the citation, determining that there was

unprofessional conduct or determining incompetence and making other

reports as they see fit. It seems to me to be what this

section of the

bill is saying.

I would like to ask the minister a question with respect to

decisions that have been taken and the powers of the council. It seems

to me that reports and recommendations to the council are implied. I

think that's one of the things the minister would answer. Obviously if

the council is going to take actions based on the discipline committee,

then there would be reports from the discipline committee. Yet in 32(

a) I don't know if that is implied. If the discipline committee dismisses

the citation, does a report then go to the council? Further to that, is

the full council then empowered, if it has reports on all these

situations, to review those decisions and possibly overturn decisions

of the discipline committee?

HON. MR. BRUMMET: It would seem to me that if the discipline

committee that has held the investigation decides that the citation

isn't warranted and dismisses it, then it would hardly go to the full

council to review to see whether or not the citation should be put back

in place. When we get to the next section, I think the member will

realize that where an adverse decision is made, then the council must

by resolution deal with it. So further protection is built in for the

member.

[ Page 1120 ]

But in subsection (a), if the discipline committee, which can be the

quorum of three all the way up to the full council of 20, dismisses it,

then no, there's no process to bring it up again before a full council.

I don't know that there would be a need to do that.

MR. JONES: On (

b) and (c), I still think this question

remains: what if the discipline committee erred in its judgment?

Certainly reports will then go to the council and will be reviewed in

order that the council may determine the kind of action it wishes to

take. I don't see that there is then an opportunity to overturn a

decision of the discipline committee.

HON. MR. BRUMMET: To dismiss it or ...?

MR. JONES: To dismiss it. Suppose, for example, we had a

discipline committee that found a member guilty of misconduct, and a

report was sent to the council. Would there be an opportunity for that

council not to reprimand, not to suspend, not to terminate based on

that report, but based on their review of the decision of the

discipline committee?

[Mrs. Gran in the chair.]

HON. MR. BRUMMET: I'm certain, Madam Chairman, that the

member is quite sincere in the questioning, but I thought we were still

on.... If the discipline committee, having held an inquiry, determines

in their judgment that there's no evidence, or inadequate evidence, to

support the claim or the complaint against the member, and they say:

"We're dismissing this; there's no evidence to support it...." Surely

the council does not need the power not to take action and not to do

that. They will have nothing to deal with if the discipline committee

doesn't give them anything to deal with. So they don't need powers not

to do things; they need power to do things.

MR. JONES: That was the answer to my first question. Perhaps

the minister is correct, but it seems to me that if the hearing is held

by the discipline committee, and that discipline committee finds a

member guilty of, say, misconduct, then I assume a report is implied.

It goes to the council, and that report recommends that this member is

guilty of misconduct. Is there an opportunity then for the council to

review that decision?

Let's suppose that it reviews the information on which that decision

was made, rather than just the decision, and on the basis of that

information finds that the discipline committee erred in its decision.

Is there then an opportunity for that council to overturn the decision?

It seems to me that by a majority vote of the council, what's available

at that point are reprimand, suspension, or termination of membership

and cancellation of the certificate. I don't know if there's an

opportunity at that point, once the council has received its report and

the report is an adverse one, for that council to overturn the decision

and not in effect dismiss the citation — because that's the power of

the committee — but find the member innocent of that charge of

misconduct.

HON. MR. BRUMMET: No, Madam Chairman. Perhaps I'm

misunderstanding the question. If the discipline committee feels that

the member is guilty — let's put it in those simple terms — then they

may take that ahead to the council. The council doesn't have another

hearing of its own; they've delegated that to the discipline committee,

and they can take appropriate action by suspending, adjusting or

whatever. In other words, they determine what the punishment shall be.

What I thought the member was asking was that if they find the

member not guilty, how do they deal with it? My answer was that they

don't, because they're not asked to deal with it. There's no cause to

deal with it. But the second part of the.... Maybe that's what the

member was asking. I thought you were on subsection (a), because that's

where you led me. If we're on the other sections, then.... So really,

the answer to the second part of your question is no, the council does

not rehear it. What the member then has after the reprimand, or the

council decides that.... The member has the appeal to the courts.

MR. JONES: That was the question, Mr. Minister. So it seemed

that when it went from the discipline committee to the council, that

was sort of an avenue of appeal. The minister's answer is suggesting

that there is no appeal there, that the council must follow the kind of

recommendation that the discipline committee makes; and that, as the

minister says, the only option that that council has by majority vote

is to determine the punishment. I think that's what the minister said,

So there's no kind of appeal process in there from the discipline

committee to the council. I thank the minister for that.

I would like to ask a second question. Again, it's a question on

which the bill is silent. Yesterday we discussed the rights of the

council, under the Inquiry Act, to call witnesses and receive documents

and do those kinds of things. I guess I'm looking at the legislation to

make sure that it's fair on both sides. I'm wondering, in this

instance, if the member who has been the subject of the inquiry will

have any right — and I think this is a principle in law too — to hear

the decision of the council in person? I know the bill is silent on

that, but I would appreciate the minister's reaction,

[3:00]

HON. MR. BRUMMET: I can't even visualize an instance where an

inquiry or hearing is held to determine whether or not the certificate

is to be lifted and then they don't let the member know. When a person

is before the courts — let's use the legal analogy — I don't know of

anywhere where a person is required to have a hearing in court and then

the court shall make known to the person the decision. To me, it goes

without saying. Obviously, the decision can be given to them orally, or

in writing if the member for instance didn't appear — as we were

talking about in an earlier clause. Then the decision in writing is

known. I know right now, as the minister, that where, say, we cancel a

certificate for a teacher, first of all the teacher is informed that

this action is being planned, then has the right to challenge why it

shouldn't be done, and then, when the certificate is lifted, is

informed that it has been. So I don't really see a problem with the

legislation not saying, after all the hearings and all the decisions

and whatever the council decides: "And it must so inform the member."

That's what the whole process is about.

MR. JONES: If I am the accused and have appeared before the

committee and had these decisions made, and I go through all the

processes, and I end up in court, it seems to

[ Page

1121 ]

me that in court, when that decision is made and handed down, I have the opportunity to be there in person.

My question to the minister was: in this process, when the council

does a similar kind of thing at that stage in the proceedings, does the

member, or does the minister think the member should, have the right to

appear in person as that decision is made by the council? Not being a

lawyer, I don't know whether it is a fundamental principle of law. But

it seems to me that in court decisions you do have the right to appear

in person when those decisions are handed down. And it seems to me that

it is a dramatic process and a significant process. I think the right

to be present is an important right. I wonder if the minister agrees

that the right to appear in person at the point of decision is one that

a member should have.

HON. MR. BRUMMET: I guess the short answer is no, I don't

think there's any requirement that the person must appear in person

after having been told: "We are going to hold a meeting to cancel your

certificate; you must be there to witness this in person." You might

have to drag the person there. Whether they have the right.... ? I

think they would certainly have the full right to appear before the

inquiry, and the inquiry would give them the decision that they're

taking forward, and the council would inform them then what the

decision was. If there was any reprimand, obviously the member would

have to be told what the reprimand was, or it would have no effect. If

they are going to suspend the membership, they have to let the member

know. But I don't think there's any requirement, nor can I visualize

that there should be a requirement that the person has to be there in

person to get this decision.

MR. JONES: It's interesting that the minister looks upon the

process in terms of the requirements of the member. I was looking upon

it, and as the minister correctly determined, in terms of the right. It

seems to me that from the legal process I have the right to appear in

person not only at the point of judgment but also at the point of

determination of punishment. So at both points — when the court makes

the decision that I'm guilty and when the court suggests that I receive

a certain punishment — I am allowed, permitted, and in fact have the

right to be present. I was trying to make the point that perhaps, in

fairness to all sides, that should be a right. I know the bill is

silent on that. I was inquiring of the minister whether he felt that

that is a reasonable right for a member of the college to have. The

answer that it not be a requirement I think is a reasonable one. The

question remains whether or not it should be a fundamental right to

appear at both points: the point of determination of guilt or innocence

and the point of determination of punishment. I don't know whether the

minister has a response to that or not.

The

section uses language that I think we're familiar with, yet when

I look at this language and at the key terms in the language, I still

have some confusion. I'm sure the minister has thought more about this

section and this kind of thing than I have, although I've participated

in hearings to determine not incompetence, but misconduct. These are

very trying meetings, very painful meetings, very difficult meetings,

particularly when people's careers and lives are at stake. Just in

terms of the language — competence would be a much more difficult area

to define, and I wouldn't ask that — I would like to ask the minister

what he sees in the language around "professional misconduct" and

"conduct unbecoming a member." They seem very similar to me; perhaps

both are necessary and it's fair that both be there. But I wonder if

the minister would be willing to see.... I would be interested to see

what examples the minister might see for professional misconduct as

different from conduct unbecoming a member

HON. MR. BRUMMET: They do seem very similar, but my legal

adviser tells me that there have been decisions in the past where a

distinction has been made between the two, and so we're covering both

of them. Whether conduct unbecoming a member of the college and

professional misconduct are different or not, I suppose it makes

certain that both are covered should a case come forward.

MR. JONES: I would like to ask one further question on this

section, and it has to do with the competence part of it. The current

law governing these kinds of situations requires a process of

evaluation. Some suggest that it's a lengthy process, but it's one that

does provide due process for members of the teaching profession to

shape up before they have to be shipped out, if you like. Having this

evaluation process built into the situation — which may end up with a

member losing their certificate and their right to teach — is an

important part that is missing, but I'm wondering if there's any

opportunity for this kind of thing to feed into this process. I guess

I'm wondering what kinds of evidence may be entered. It seems to me

that teaching reports are a critical part of this whole process, and I

would like to know if the minister sees teaching reports being entered

as evidence in this process. Also, is there any avenue for entering

parental complaints or evidence as well?

HON. MR. BRUMMET: I think we have to go back and remember

that in a previous section, it was clearly established that before a

college member would come before the council....

Interjection.

HON. MR. BRUMMET: I'm sorry, you weren't interested in the answer.

MR. JONES: I'm very interested.

HON. MR. BRUMMET: Before the college member ever came before

the council on an incompetence hearing, it would only happen after all

of the due process for competence had been exhausted at the local

level, through the appeal processes and whatever processes are

established. If after all that process the member was clearly labelled

as incompetent, then it could go to the college council to look at it,

and if they are going to deal with this, it naturally follows that they

would do it on the basis of the evidence that was presented. That's why

they have all the rights of a commissioner in order to ask for all of

that evidence. But it doesn't even come before them, so when you say

the principals' reports and all of those reports.... That has all

happened, and all of the appeal process has been exhausted, before it

ever comes to the council.

I tried to put it in these words yesterday: that the council would

have to only determine whether that incompetence was so significant

that the teacher should have his certificate suspended — not just his

job lost.

[ Page 1122 ]

MR. JONES: Thank you for that answer, Mr. Minister.

I would like to pursue that point. Perhaps it has been made before,

but it hasn't really been made clear to me. It's still unclear in my

mind how this body of peers determines exactly what you said —

determines that the incompetence was so serious that it warrants this

other action. It seems to me that there has to be evidence,

documentation. It's not unreasonable that it would come from the other

process, as you say. I'm not clear on whether it's reasonable that the

evidence from this process also appear in this process, but I'm still

unclear as to how those members of council are going to determine the

punishment based on the degree of incompetence.

HON. MR. BRUMMET: Madam Chairman, I would assume that when

the council chose to deal with this matter of incompetence which had

been established through the process and the appeal process and

everything of that nature, then they could, in other words, have the

hearing, if you like, all over again, where the member would be

entitled to defend against that. I suppose the only analogy that I

could make is, how would they determine that this conduct was such that

he should have his membership lifted? Let's suppose it was the

engineers' association. If every bridge that the engineer had built in

the last four years — say eight or ten of them — had collapsed, the

professional association might well determine that that was

incompetence sufficient to make sure that they take steps that he

doesn't build any more bridges in the province.

MR. JONES: But somewhere they would get that information that so many bridges have collapsed out of so many.

HON. MR. BRUMMET: It's all available to them.

MR. JONES: It is all available. Thank you.

Could I ask one more question on that process. It is a complicated

process, and I appreciate that, and I appreciate the minister's

patience in answering these questions.

The minister states that this process as it relates to incompetence

has already transpired at the school district level. I would like to

ask a question about the situation that occurs with complaints of five

members. My understanding is that that complaint by five members can

occur only on conduct. However, as it goes through the process of the

discipline committee or the council, it seems to me that at those

stages, ending up with decisions of the council after the inquiry or

hearing, even though the complaint was based on conduct only.... I'm

wondering if incompetence can come out of the other end. I think the

complaints can put conduct in, and out of it at the other end can come

incompetence.

It is a convoluted process. I'm sure it's clear in the minister's

mind, and I would appreciate it if the minister could help me get it

clear in my mind.

[3:15]

HON. MR. BRUMMET: Yesterday, Madam Chairman, I went to great

lengths to explain that if colleagues chose to believe that one of

their teaching colleagues was incompetent, they couldn't directly ask

the college to look at that; they had to go through the local process,

as I've called it, where they can ask for.... or maybe they can report

to the board. The board could ask the superintendent or the principal

to go into the classroom and check that. In other words, all they can

trigger on a complaint of incompetence is to the proper local

authorities, who then have to, if you like, put the member through all

that, determine whether it's an erroneous or a legitimate complaint,

and then follow it up with all of the procedures and all of the appeals

and all of that. So the incompetence can come, but only after the

member has had the whole due process through those channels where

people write reports and do that sort of thing.

On professional misconduct, this is a professional organization, so

we are talking about conduct unbecoming a member of this profession

about which five members can go to their college of peers and say:

"This teacher or this administrator is doing things or has done

something that brings the profession into disrepute." So we want the

professionals to deal with it. It has nothing to do with competence; a

teacher could be very competent in the classroom and still be guilty of

gross misconduct. All I have to do is point out that some of the people

whose certificates were cancelled for sexual abuse were very competent

educators.

I hope I have explained the different routes. If you want to deal

with competence, you have to go through the process whereby people

qualified to judge that competence make the judgment and the

assessment, and then the teacher has the right of appeal.

Whereas if it

is misconduct, a body of his professional peers will look into it to

see whether or not there is anything to it, first of all; then there's

a preliminary investigation to see if a full inquiry is warranted. When

a full inquiry is warranted, when it has been determined that there is

a case, with the right of the member to appear with counsel — all of

that process we have just gone through in the last few sections.... If

the person is in effect guilty as charged, if you like, then the

council has certain actions that it can take, from the very extreme

through to reprimand — and it has to state those.

MR. JONES: I would like to thank the minister. My confusion

was not over the comments that were made yesterday; I appreciate those.

It probably doesn't matter anyway: if I lose my certificate, I don't

care whether I lose it for incompetence or misconduct — if I lose my

certificate, I lose my certificate. My confusion is over the language

about the investigation stage and the inquiry stage. It is a simple

question, and as I say, maybe it is not important, because the ultimate

product of that would be me losing my certificate. But if I am charged

for misconduct by five members, they would send certain information to

the council or the discipline committee, and a preliminary

investigation can determine whether I am guilty of misconduct or

incompetence. It seemed to me that if the complaint was about conduct,

in that circumstance the preliminary investigation or the inquiry could

only determine whether or not my conduct was unbecoming or improper.

Interjection.

MR. JONES: Okay. Then if in the inquiry the complaint is

about conduct, can the inquiry only deal with conduct in that

circumstance, or can it also deal with competence based on that

complaint, which would preclude the possibility of going the school

board route?

HON. MR. BRUMMET: I think I have tried to say that they can

deal with either misconduct or incompetence. There are just different

routes to get it there.

[ Page 1123 ]

MRS. BOONE: The minister just stated that there would always

be a preliminary investigation. Yet

section 27(4) indicates that the

council or discipline committee may, whether or not it has conducted a

preliminary investigation, inquire into the conduct or competence, or

both, of any member in respect to whom a report or complaint has been

made. So it's not really clear that there will always be a preliminary

investigation. When does the minister see a preliminary investigation

not taking place?

HON. MR. BRUMMET: Well, Madam Chairman, the preliminary

investigation, as I see it, could be an investigation, or it could

simply be on the basis of the charge — they might feel that they can go

right to an inquiry. To me, that would be the preliminary

investigation: this warrants a full inquiry right now; it's serious

enough. Let me use a silly example to make the point. If the complaint

came in by five colleagues that a teacher had hit a kid over the head

with a softball bat, I can't envision the need for a preliminary

investigation to determine whether there should be an inquiry. So they

can go either way.

MRS. BOONE: Surely items like that would not be dealt with by

this council. An item such as that would be a legal thing, and he would

be charged, I would assume. The board would immediately remove that

person from employment. I can't see waiting for this council to take

action on that.

I'd like to ask the minister, just to get some clarification,

because I wasn't clear on this.... Maybe it's somewhere in this pile of

stuff, but I've got so much paper here. Can you tell me, please: is the

board process still in place? Does this still entail the three bad

reports within an 18-month period, no more than six months apart? Does

it still involve that process, along with the procedure that the board

must make assistance available to the employee? Does that still exist

somewhere in the legislation?

HON. MR. BRUMMET: No, Madam Chairman. When we went to full

bargaining rights for teachers, the adequacy of determining

incompetence was left to the board. We didn't leave in place all of

these reports and the two years and that sort of thing. We do have

assurance here in the act that the board must be able to satisfy any

appeal process, including a board of reference. When they say

"incompetent" and decide to move on dismissal, they must be able to

defend that. I would assume that the agreement that teachers or local

associations may make says they want six reports in a year from six

different people or.... That's not for me to determine. I think that

that will be for the agreement to determine.

I don't think that any board, just to hypothesize here, would dare

go forward with one vice-principal's report and no corroboration,

knowing that they could face the whole appeal process. In other words,

I think it's self-regulating in that sense — there would have to be

something there. I also have full confidence that the local

associations, whether they form unions or stay the association route,

facetious arguments put forward as criticisms of the bill, such as

somebody not liking the colour of the hair — try and make that one

stand up or corroborate it — or anything of that nature. That's why I

say the process is built in.

MR. JONES: I don't want to argue with the minister, but I

think we would agree on the importance of this thing. I'm not from a

small town; I've always lived in the lower mainland. Maybe my colleague

from Prince George North would be a better one to comment, but I'm

convinced that there can be frivolous complaints. I know that many

safeguards are built into this process, so that the outcomes are

generally going to be fair. But teachers are prominent members of the

community and can often be put in a very vulnerable position because of

their position in the community. Sometimes this can fall into the

political realm: if a teacher is viewed as particularly political, that

can put a whole group of people against that particular teacher. I

think the colour of the hair is not a good example, but a good one is

where there are political differences in small towns, particularly

where those political differences can lead to ill will that could

inject problems into this process. Hopefully, the process will be

well-designed to screen out any frivolous complaints, but I don't see

frivolous complaints as being hair colour. I do see potential danger

with the kinds of processes that can occur, particularly in small

towns. I just wanted to make that remark to the minister.

HON. MR. BRUMMET: Madam Chairman, even though we're a little

far-removed from the section, I can still respond to the member. I

don't think that at any time I said there cannot be frivolous

complaints. There can be frivolous complaints all the time. What I'm

saying is that this legislation ensures that no teacher can be

disciplined unless the complaint is substantiated by a pretty secure

process. Yes, there will always be frivolous complaints. When you and I

were in the system, we ran up against them. But generally somebody in

the system wanted to determine whether there was any substance to such

complaints before they took any action. Even if someone there feels he

wants to proceed on a frivolous complaint which may not even be true,

this whole process assures the teacher protection against any action on

a frivolous complaint. I don't think I can make a law to say that

nobody shall put forward a frivolous complaint. I'm just saying that if

they do, they're going to get nowhere with it. The teacher is secure

until something is proven.

Section 32 approved.

section 33.

HON. MR. BRUMMET: Madam Chairman, I would like to move the amendment standing in my name on the order paper. [See appendix.]

On the amendment.

MR. JONES:

Section 33 has been amended in a number of places

to take out the words "to teach" and replace them with "to carry out

his responsibilities as an employee of the board." It makes eminent

sense to me to make that amendment, because there are certainly a

number of employees in a school district who may only spend a small

portion of their working hours teaching, if any. However, if we are

changing the words from "to teach" to "responsibilities," would a

person's responsibility as an employee of the board include duties that

might fall outside of their usual job description? For example, would

extracurricular activities be included in what is meant by "carry out

his responsibilities as an employee of the board?"

[ Page 1124 ]

HON. MR. BRUMMET: No, Madam Chairman. The main reason that

change was made is that in the discussions with the BCTF and BCSTA,

they said that by using the term "to teach," none of these powers would

apply to anybody categorized as an administrator. So in that sense,

since this legislation applies to teachers only — it doesn't apply to

the maintenance workers or anything of that nature — changing it from

"to teach" to "responsibilities as an employee of the board" includes

the administrators. The college can then take action against the

administrators, because this is the

section where we're talking about

actions by the council against members of the college. They said that

by leaving "to teach" in there, you can't deal with the principal if he

doesn't teach. We're saying yes, they can.

[3:30]

As far as responsibilities of that member as an employee of the

board, that's another argument as to what those responsibilities

include. It simply says the responsibilities of the educator.

MR. ROSE: I'm a little concerned about the amendment as well,

and I'd like to ask the minister a question. Maybe it has been asked; I

don't know. I've been in and out.

AN HON. MEMBER: I think it was asked but not answered.

MR. ROSE: Someone suggests it was asked but not answered.

Since "teach" has been changed to "carry out his responsibilities,"

does the minister contemplate other responsibilities for teachers

employed by school boards? For instance, could other responsibilities

include extracurricular activities beyond the teaching day?

HON. MR. BRUMMET: I just said that "responsibilities as an

employee of the board" I'm sure will be defined in the agreements

between the board and the association or the union — what constitutes

the responsibilities of an employee. It doesn't get into whether it

includes extracurricular, but in order to include administrators it has

to go beyond the term "to teach." We were told that was too narrow, so

this is simply to include administrators. Under the duties of

administrators, obviously some responsibilities are spelled out in the

legislation. Those would apply as part of their responsibilities, but

not for teachers.

MR. ROSE: As the minister well knows, in the past teachers

have assumed other responsibilities, such as playground duty, lunchroom

duty — things of that nature. Would those fall under the heading of

"other responsibilities?"

HON. MR. BRUMMET: I believe the definitive answer is that in

the sections of the School Act not amended by this legislation, the

responsibilities are defined in the act and in the regulations. Those

are the ones that apply unless different ones are put into contracts.

MR. ROSE: Just so that I have it certain and in

for the amendment has nothing to do with duties or extracurricular

activities on the part of teachers, who are primarily there to teach.

It is meant to cover those people, such as principals and

vice-principals, whose duties include things other than teaching, which

would be administrative, supervisory, assisting, writing reports, that

sort of "other responsibilities," but which has nothing to do with

extracurricular activities that might be assigned to them — for

instance, should the school day be extended by law.

HON. MR. BRUMMET: No, Madam Chairman. What I've tried to say

is that this is the broad term — "responsibilities as an employee of

the board" — to include all administrators, and to include other than

the narrow definition of "to teach," which is to me quite broad; but

some people say it's very narrow.

Section 83 of the public schools act remains in place, and it spells

out the duties of teachers. So "responsibilities" here means, to me,

the required responsibilities of teachers. Neither in the School Act

now, nor in this, does "responsibilities" mean "and whatever else they

want to do voluntarily." "Responsibilities" is, technically, the duties

of teachers.

MS. A. HAGEN: Pursuing that same issue, and a comment that I

think the minister made around those responsibilities, there may in

fact be responsibilities that could be determined in contract language.

That contract language could be related to teachers, or, presuming that

there are in those amendments some contracts that may pertain to

administrators.... Certainly there are contracts that now pertain to

superintendents. I know, having sat at the bargaining table with

expanded scope discussed, although not always with agreement reached,

that there is considerable movement on the part of the parties — school

boards and teachers — to discuss some of those voluntary

responsibilities. There may in fact be some expenses that are covered

with those.

Implicit in all of this development may be some expanded definition

of responsibilities, as employees of the board, that goes beyond the

scope of the act, as the minister has just noted. In that case, and in

interpreting this particular section, would those agreements provide a

basis for determining what that person's responsibilities as an

employee of the board indeed might be? Or does that remain within the

prescription of the act and its definition of "teacher,"

"administrator," "superintendent"?

HON. MR. BRUMMET: Madam Chairman, I would assume that, given

full bargaining rights, both parties would agree to an expansion of

what consititutes the duties or responsibilities. It might help if I

read for the members

section 83 of the public schools act, which says:

"Duties of teachers. 83. Each teacher shall (

a) see

that the physical conditions under his control in the school or

classroom are suitable in respect to cleanliness, neatness, heating and

ventilation, (

b) provide such assistance as is necessary for the

supervision of pupils on school premises and at school functions,

whenever and wherever held, (

c) maintain care that games are honourably

played and activities conducted in a suitable manner, (

d) see that

rules and regulations with respect to the conduct of public schools and

school hours are observed, (

e) provide, to the extent that time

permits, educational advice and instructional assistance to the

individual pupils assigned to him, (

f) maintain such records as are

required by the ministry and the board, (

g) inquire into

[ Page 1125 ]

the cause of and record all cases of tardiness and absence of

the pupils in his charge."

That is the list in the present School Act. I know there may be some

arguments about whether these are being observed now or not, but I'll

leave that to another forum. The member, of course, can refer to these

if she wants to, either in the Blues after this is done or in the

public schools act, to study them in great detail.

But those are the duties of teachers; that has not been changed. The

only thing that I might point out is that "teacher" included others as

well under the School Act. With the redefinition that we've done for

"administrators" and that, that applies to them as well.

MS. A. HAGEN: Two questions. When the minister responds, I'd

like him to just confirm the

section of the act that he's just quoted

from, if he would, please.

I wanted to just ask a very specific question. If there is an

expanded definition of the responsibilities of a teacher, as an

employee of the board — or an administrator or superintendent, for that

matter — in the agreements that the teachers and the boards make under

the new terms of this act, for the purpose of

interpretation of this

section, will that expanded definition be the basis, then, for

interpreting this phrase in the amendment? I hope I'm making myself

clear. We're in the process of an evolution, if you like, of what may

be deemed the responsibilities of the teacher. There are School Act

prescriptions, archaic as they sometimes appear to be at this time, in

terms of the very sophisticated things that a teacher does.... But we

know that we're moving to some avenues for those

definitions to be

expanded in contract. I'm trying to get some indication of whether, in

interpreting this section, that expanded definition as it may occur in

contract will be the basis for

interpretation of this amendment.

HON. MR. BRUMMET: The short answer, of course, is yes. I work

on the assumption that if teachers wrote into an agreement an expanded

role of responsibility and signed that agreement, then I'm sure that

the board could say: "You have agreed that these are your

responsibilities, so now you're held accountable for your

responsibilities." So I would imagine this would apply. But I have no

doubt that the council is hardly going to be having a hearing here on

anybody because of one small item or something of that nature. Do you

remember how the process gets there, through all of the appeal and

everything?

MR. JONES: I appreciate the minister's answers. Of course, he

appreciates the line of questioning because this is such a critical

area of controversy in the province at the moment. Certainly I agree

with the minister that this is the way in which these things should be

dealt with. If it's controversy between the school boards of the

province and the teachers of the province, then I think that's an

appropriate vehicle to work out those differences. So I appreciate the

answer that this amendment is not trying to resolve that dispute.

HON. MR. BRUMMET: I may have left a misimpression. The

section I was quoting from was

section 83 of the regulations of the School Act.

Amendment approved.

section 33 as amended.

MR. CLARK: On the motion?

MADAM CHAIRMAN: On the motion.

MR. ROSE: Or on the section?

MADAM CHAIRMAN: The amendment has passed.

MR. ROSE: Well, if you insist.

Interjections.

MR. ROSE: I have a brief question about this — very quick, Madam Chairman. Time will pass quickly.

I want to understand from the minister whether a contractual

agreement that permitted, say, a teacher to be paid extra for say

coaching, or running the high school band, or operating a drama club,

would fit into the "other responsibilities" section, rather than teach.

Is that an example of the kind of thing a teacher could be involved in

beyond teaching?

Shall I try again?

You've changed "teach" to "other responsibilities," in rough terms.

Isn't that what we've been talking about in this amendment? Would an

example of that for a teacher be if under a contract with their board,

a teacher or teachers were rewarded for taking on extra duties;

therefore these became "other responsibilities"?

Interjection.

MR. ROSE: I don't think he heard me.

AN HON. MEMBER: Try it again.

MR. ROSE: Would that be an example of "other

responsibilities" as applied to teachers, not vice-principals, if there

was a contractual agreement in which a teacher or teachers were

rewarded for extra duties, let's say in coaching, drama or whatever?

HON. MR. BRUMMET: It doesn't talk about "other

responsibilities," although that could be, I guess, inferred that the

responsibility of the employee and the board.... I would assume that,

for instance, if a teacher signed a contract with the board to coach a

band — let's use that example — and doesn't honour that contract, then

I'm sure the board would deal with it. I doubt very much if the council

would get into lifting a teacher's certificate who said: "I agree to

take this phys ed job. I'll coach the soccer team" — that they would

lift the certificate. I don't think it really comes into this.

Remember, we're talking about actions by the council now, after full

inquiries have been held and all of that sort of thing. So that's why I

don't see it happening. But I suppose if a teacher took on a teaching

contract as an evening band instructor and that was the sole contract

that it had with the board, and then never showed up at any of the band

practices or band concerts, yes, I would think it might even get to the

college in that case to say that: "We're not going to have anybody as a

member here who does not honour the basic contract." But that's all I'm

thinking of.

[3:45]

[ Page 1126 ]

MADAM CHAIRMAN: If I can just clarify things for the Hon.

members, the amendment to

section 33 passed and we are now dealing with

section 33 as amended.

MR. CLARK: This is a very important

section of the bill, and

I'm trying to grasp it. I have a couple of questions. First, the

time-limits for decisions coming out of the hearing process. It seems

to me that a definite time-limit should be put on decisions coming out

of the hearings. For example, within two months of the disciplinary

hearing the council shall decide the matter. This would avoid having a

sword hanging over people's heads while they waited for their

punishment. You know, they go before the hearing and then they are

waiting for the decision.

There are no time-limits in this act. There is only required to be,

for example, one meeting of the college per year, so even if the

council met every three months in between, it seems to me unfair to

have someone wait so long for determination of his case, given that one

of the principles of fundamental justice is the right to a speedy

trial. It seems to me that there might be something in the act that

would compel a decision after a hearing.

I know that, for example, in labour relations arbitration, one of

the real problems with arbitrations is the delay before you get a

decision. Many major arbitrations in this province now take in excess

of a year after the trial before they get a decision, and it's causing

great strain in labour relations. This is similar. This very serious

matter goes before the council for hearing, and there is no prescribed

time-limit. I wonder whether that was considered before a decision was

reached.

HON. MR. BRUMMET: If we're going back to the last two or

three sections, which was the inquiry process and all of that,

section

33 now deals with when the person has been found, say, guilty, because

otherwise the action is dropped; in that case, here are six different

options or actions that the council may take. That's all, and I don't

know how you put a time-line, for instance, on number (a), which says

they may "suspend the membership and certificate of qualification of

the member until the member has completed to the satisfaction of the

council a course of study designated by the council." In some of the

other sections, it's within a period of time designated by the council.

That phrase shows up a couple of times: within a period of time

designated by the council — saying that you must appear before a board

of examiners within six months.

So what I think you're raising is the discussion on the last couple

of sections about the inquiry. The council, remember, makes its bylaws

and may set the time-lines there.

MR. CLARK: That's true; I'm really directing my remarks to

the last couple particularly. But it seems to me some notion in the act

for expeditious resolution of these kinds of matters would be

preferable to leaving it out. By the time you get there it's

open-ended. These deliberations can take ages and ages to go through

all the evidence, and then not to have a decision expeditiously leaves

that kind.... Really, it goes against the principles of fundamental

justice.

One other thing on that question. Due to the important nature of the actions

taken by, say, a hearing group, the council should have a two-thirds majority

in many cases. There is no reference to two-thirds majority decision on these

very important matters. I notice that the Barristers and Solicitors Act has

a two-thirds majority, because the power is to say: "You can't make

a living anymore." I know that they are serious matters, and that clearly

in many cases could be the case. If it is the case, it should be kind of overwhelming

in terms of the decision. I think the Barristers and Solicitors Act gives that

two-thirds rule. I wonder if the minister had any thoughts on that or considered

that.

HON. MR. BRUMMET: I'm not sure about what you mean by a

majority. The first clause in that

section says that where an adverse

ruling is to be made, it has to be by a resolution of a majority of the

council. That means 11 members or better.

MR. CLARK: It doesn't say that; it says: "...resolution

passed by the votes of a majority of council members present." It could

in fact be a fairly small number. It is hypothetical, but as I say,

another act that regulates professions says two-thirds majority, and

that seems to me to be particularly fair, given that the powers of the

council and the college are so immense in terms of people's livelihood.

That would do well to be clarified.

Another question on this section. If a person is required to appear

before a board or to sit in examination, the field of questions should

be restricted to the particular area of incompetence that they've been

charged with, to avoid a person being retested on, for example, his

whole university education where he's charged with being out of date.

If someone's out of date with respect to his field of knowledge and

that is brought before the council, then it seems to me that that

particular charge.... The examination and the appearance before the

board and the questions around it should really be focused on that

particular charge that's been levied and shouldn't be wide open for

debate.

Again I refer to the Barristers and Solicitors Act, where they have

this identical provision, which says that because someone is brought up

on one charge and goes before some kind of tribunal or, in this case,

examination or hearing or a board, that in fact they can only be tried

for the charge, and they are not allowed to examine all other aspects

of the teacher's competence — or otherwise — or demeanor.

As I say, the Barristers and Solicitors Act has this provision that

limits to the charge laid the field of inquiry before these tribunals.

AN HON. MEMBER: So does this act.

MR. CLARK: No, this act is wide open, as I understand it.

There is no limitation. If they are charged with a particular offence,

there is nothing that limits the scope of inquiry to being narrowly

defined. I think they would do well to have that, as the Barristers and

Solicitors Act has that. Does the minister have any comment on that?

HON. MR. BRUMMET: Yes, perhaps on the first part. It was

established in earlier debate that if the council sets a quorum, that

could be 15 members that they set. If they don't set a quorum, then it

has to be at least 11, so that means it can't be a small committee of

council in effect, and so I think that answers that.

As far as the member saying that there should be a specific area of

incompetence stated, I would think that the council has to have the

right through the inquiry process and due consideration to determine

what constitutes incompetence, rather than to try to narrow it down. I

am not quite sure

[ Page

1127 ]

what the member is getting at — that you should say incompetence only with

respect to, say, writing understandably on the board? Certainly college professors

would fail that test. But most teachers wouldn't, because the kids insist on being able to understand

it. Anyway, I am digressing. But certainly you can't make a list of what

constitutes incompetence. I guess I am maybe drawing on my background of experience. That you can't teach social studies because you forgot one date — that

sort of specificity I don't think would apply. In other words, there has

got to be a lot more through the inquiry process. And before the incompetence

ever comes forward, remember, superintendents, colleagues and principals have

written reports and have had to say that they are incompetent because of these

reasons. So all of that is already there.

MR. SIHOTA: As I understand what my learned friend from

Vancouver East was saying, the other point is of course whether or not

it ought to be a majority of those present — whether it is 11 or 15,

depending on how you look at it. But the point still remains that it

makes far more sense, given the severe consequences here, that it ought

to be two-thirds, not a majority. Does the minister not agree with that?

HON. MR. BRUMMET: No, I don't know what the member is asking for. Generally in a democratic system a majority constitutes a majority.

MR. SIHOTA: I appreciate that normally a majority constitutes

a majority. But we are not dealing here with a normal situation. We are

dealing here with a situation that has some very severe consequences

for the member who has been dealt with under

section 32. Of course,

under the Barristers and Solicitors Act there is a two-thirds

provision. I'm wondering why it was that the minister did not embrace

the same policy position as enunciated under the Barristers and

Solicitors Act, namely two-thirds provision.

HON. MR. BRUMMET: I didn't hear everything the member said,

but to get back to the majority, I know it is irrelevant to this act

but the new Bill 25 for the legal profession removes the two-thirds

majority because of a demand in the legal profession that a majority

should be a majority.

MR. SIHOTA: Well, Bill 25 will hit this stage at some point, and we

will talk about that then.

Moving along, the other concern I have is the inadequacy of a

definition of "mental disability" under the section. The

section talks

about the board being satisfied that the competence of the individual

is not adversely affected by physical or mental disability. First of

all, that seems to me to have a Charter of Rights minefield there. But

I have difficulty envisioning a physical disability that would affect

one's competence to teach. I am not too sure what it was that the

government had in mind when they put in that clause.

HON. MR. BRUMMET: I think you have to read the whole phrase:

"...and satisfy the board that his competence to teach" — or to carry

out his responsibilities — "is not adversely affected by a physical or

a mental disability...." So if the competence to perform his duty is

not adversely affected by that, then it's not applicable, is it?

MR. SIHOTA: But why raise the matter of physical disabilities at all?

HON. MR. BRUMMET: Because if any disability adversely affects

the person's ability to do the job.... That is the applicable phrase

there, isn't it, whether it adversely affects, whether it's a physical

or mental disability. I'm trying to think of any other.... I don't

think we'd count a social disability. It would have to be something

that adversely affects his job.

MR. SIHOTA: Madam Chairman, is the minister then saying a back injury to a teacher may well be grounds under the section?

HON. MR. BRUMMET: I wouldn't think, Madam Chairman, that a

back injury or a missing arm or leg necessarily apply, unless it can be

shown that the person cannot possibly do his job because of it. I've

taught with a broken arm, and I've even been an MLA and a minister with

a cast on my leg. If somebody had shown that I couldn't do my job — it

may have got tossed out — but it didn't adversely....

Interjection.

HON. MR. BRUMMET: Well it slowed me down, but it didn't adversely affect....

[4:00]

MR. SIHOTA: Madam Chairman, I think that lends more credence

to my point. I find it difficult to conceive of a physical disability

that would make it impossible for someone to continue to perform his

job. What kind of society are we getting into if we're saying to

people.... ? Maybe physical disabilities may warrant an individual from

not teaching for a specific time. Okay, I can understand that. For

example, if you have a cold, I guess that's a physical disability. If

you have a back injury, that's also a physical disability. Of course,

it may prevent you from attending, and you could apply for your normal

sick leave and off you go. But this

section goes a little bit further

and talks about the eligibility or the suspension of the membership

certificate qualifications on the grounds of physical disability. I

don't see how it is that you can justify.... I can't envision a

situation — and I'm asking the minister if he can — when someone could

be deemed to be physically disabled. Why raise the whole issue of

physical disability? I can't think of one situation that would be

captured by this amendment to

section 33.

HON. MR. BRUMMET: It's tempting to get into an imaginative

discussion, but suppose a person had a stroke and was incapable of any

movement. Then if the board felt that that teacher should be let go,

there is an inquiry process. There's a whole discussion on that that

you missed. If there is an adverse decision from the inquiry process,

then the board can call the member forth to show that this disability,

whatever it is, doesn't adversely affect his ability to do the job, and

if that person could show that it doesn't, this is a further protection

for the member, not a witch-hunt on what constitutes physical or mental

disabilities.

That whole process has gone through the inquiry and through the

appeal, and when the committee says there is an adverse decision, then

the council has to do something about it. One of the things they can do

is suspend the certificate, unless the member can show that this

doesn't adversely affect whatever it is. So I think it's difficult to

take — which may be fine in a courtroom discussion — one phrase out of

context

[ Page 1128 ]

and have a lively debate about it. I enjoy it, but

it's not too relevant to the whole structure of what we have discussed

before and what's coming after.

MR. SIHOTA: Madam Chairman, it seems to me that if someone is

suffering from a stroke, he's going to be eligible for long-term

disability and he's going to be dealt with that way. I still don't

understand why we would raise that issue potentially under

section 32

and specifically under

section 33.

Maybe we'll move on from there if the minister doesn't want to answer that question.

Interjection.

MR. SIHOTA: I'm sorry, Mr. Minister, you didn't hear that one, but it was.... We'll repeat it later.

There seems to me also to be a concern about confidentiality, and

that is that if a determination is going to be made on mental or

physical grounds, is there an assurance in the legislation that the

decisions and the actions are kept confidential?

[Mr. Pelton in the chair.]

HON. MR. BRUMMET: I think I can respond. For instance, if the

college decided to cancel a member's certificate, then that has to be

reported to the minister, to every board in the province, and the

reasons therefore. So I can't assure that it's kept confidential;

neither do I think it should be.

MR. CLARK: Just following up on some of the remarks of my

learned friend from Esquimalt–Port Renfrew, in terms of the makeup of

the board of examiners, we're dealing with this question of "affected

by a physical or mental disability." They have to prove otherwise.

Shouldn't there be a prescription or requirement for the makeup of the

board? For example, shouldn't there be a requirement for a doctor to be

present for trying to prove whether or not the individual is too

handicapped or too physically disabled to do the job? In some cases, if

it's a question of being mentally handicapped, shouldn't there be a

psychiatrist on the board of examiners?

So a number of questions flow from that. Must all the members of the

board of examiners be members of the college, for example, or should

there be expert members who can be called in to deal with these

questions of physical and mental handicap?

HON. MR. BRUMMET: Well, again, we keep cycling back to the

inquiry section. This is after the inquiry has been held and an adverse

decision against a member has been made; after all the evidence has

been presented, this is where this

section we're talking about cuts in.

Then there's another assurance; the member still has an opportunity to

show cause that this wasn't adversely affected.

In answer to your question, obviously the reason that the inquiry

has been given the full powers of a commissioner is so that they can

call in expert testimony and expert witnesses.

MR. CLARK: So you're saying that all of the members of the board of examiners must be members of the college. Is that what you're saying?

HON. MR. BRUMMET: I'm saying that the legislation states

"before a board of examiners appointed by the council," so that leaves

it open to experts and/or others. I presume that if they're dealing

with a medical problem, they would certainly include some doctors, even

though no doctor may be a member of the council.

MR. CLARK: Thank you very much, Mr. Minister. That clarifies

that point. I wonder, just following through with what you're saying in

terms of how this fits into the scheme of discipline of the college,

whether this body, the board of examiners, is really to determine a

final adjudication with respect to proving whether or not the

individual is medically or physically disabled, or whether it is really

the determiner of the sentence. He's already been proven guilty by

these other processes; he's found to be essentially guilty by this

board of examiners. Does this board determine the sentence, so to speak?

HON. MR. BRUMMET: Where a member has, by the council, been

determined to be eligible for suspension or cancellation of his

certificate, the member may say that was wrong. So the college may

require that member to appear before a panel of experts, who can then

hear his case, and the member may say: "Look, I am not adversely

affected or prevented from doing my job by what I have been suspended

for." So it's a further protection.

MR. SIHOTA: On that matter — the board of examiners — my

question to the minister.... It may not be an appropriate question, but

it seems to me that that raises an issue of whether or not passing the

buck — if I can put it that way — to the board of examiners amounts to

improper delegation in law. Does the minister not agree with that?

HON. MR. BRUMMET: The answer is no.

MR. SIHOTA: Perhaps the minister could explain why not.

HON. MR. BRUMMET: I'm sort of tempted that.... You know, the

counsellor coming in, shall we say, and having some fun here without

preparing his case.... I hope your bar association doesn't find out

about this. If you would read subsection (2), it says: "Where an

adverse determination respecting a member is made under

section 32(

c) the council may, by a resolution passed by the votes of a majority of

the council members present at a duly constituted meeting of the

council" — and let's skip right to subsection (f). By a majority vote

of the council members may "require the member to appear...before a

board of examiners...." So in that sense I feel that it is not passing

the buck; it is a decision fully, properly and duly made by the council

that they are seeking the advice of an expert or of a panel of experts

— shall we say psychologists, if that is warranted, or doctors or

lawyers.

MS. A. HAGEN: Mr. Chairman, one of the issues that we often

have discussed around teachers — and it has been this way for all ages

— is lifestyle. Clearly in some of these areas where we are talking

about addiction or physical or mental disability, there is always the

possibility that the different perspectives about the lifestyle of a

teacher, of a professional, may come to be considered in examining the

competence of

[ Page

1129 ]

that person and also in passing judgment, as this particular clause does.

For example, in clause (

f) there is a reference to addiction to

alcohol and drugs rather than to abuse of alcohol and drugs. I simply

take that as an example where "addiction" suggests a lifestyle, where

perhaps "abuse" would suggest more the sort of thing that would affect

competence. Is there not some danger, Mr. Minister, that some of those

standards, which I know do vary by individuals, and may vary by boards

and by communities, can come into play in this area, where a person may

be in jeopardy because of a lifestyle, not necessarily where that

person's competence is affected but where there is potential to put

that person in jeopardy just by virtue of that lifestyle?

HON. MR. BRUMMET: I've tried to say this repeatedly. The

operative phrase here is: "not adversely affected by." So the person

who's had his certificate lifted because he drinks too much can appear

before a board of examiners and show that he is not adversely affected

by his addiction to alcohol or drugs.

We are definitely talking about addiction here, not an odd drink or

something. I can't imagine it getting to this point, through the whole

appeal process, through the whole council, through all of this, to be

set before a board of examiners because a person had a drink and

somebody in some community doesn't like that. I can't imagine this

whole thing ever getting this far. This is the final opportunity for

the person who has been convicted through all that due process to say:

"My colleagues will give me a hearing before a board of examiners of

professionals to say that my teaching is not adversely affected by

that." The operative phrase is: "not adversely affected by." I'm not

sure whether I'm the judge of whether an addiction to alcohol makes a

person incompetent — or misconduct or something like that. What we're

talking about is the operative phrase here.

[4:15]

MR. JONES: I would like to make a suggestion in terms of this

procedure for a further safeguard. From the kinds of comments the

minister has made, I believe that he strongly feels that there are

already many safeguards in this process. However, I would like to make

one suggestion. It has to do with the concept of mental illness and

drug and alcohol addiction and what I perceive as the modem view of

those circumstances: that these circumstances are really considered to

be illnesses rather than personal transgressions. If we do view that as

a possibility, as more in the health category than the social

affliction category.... I would like to make the suggestion to the

minister and get his reaction that there is a possibility.... If we do

really believe that these circumstances are illnesses, and that they

fall into the health category rather than the social category, then

perhaps it would be possible to build one more step into this action

process. If we really view this as a health question, the person

involved could be ordered to take sick leave for some period — perhaps

three months — in order to have an opportunity to cure himself of the

illness, and then to appear again before the board and have another

assessment. If he passes that second assessment, he then could be

reinstated if treatment was judged successful.

I wonder if the minister sees that as a possible safeguard that

could be built into the process, based on the idea that these

circumstances are health questions.

HON. MR. BRUMMET: Certainly. I suppose that is partly

anticipated in the final clause in this subsection (f), where it says:

"on his failure to satisfy the board that his competence to teach is

not adversely affected by such disability," which means that if his

ability to function in the classroom or in the job is adversely

affected at this point, the board may "suspend the membership and

certificate of qualification of the member for a fixed or indeterminate

period." If you will recall, there are previous sections where the

college may carry out assistance programs to members. I could cite the

member a couple of cases now, through boards of references, where

certain conditions have been attached and people have been permitted to

teach. Probably the best one in public record is Dwight Gooden, the

baseball pitcher, who appeared last night for three innings on

conditions set by his professional colleagues, or his professional

board.

Section 33 as amended approved.

The House resumed; Mr. Speaker in the chair.

The committee, having reported progress, was granted leave to sit again.

HON. MR. STRACHAN: Mr. Speaker, earlier today a petition

under standing order 35 was raised by the members of the opposition

with respect to South Moresby and attendant negotiations between the

indicated at that time that I was not prepared to accept that petition,

discussions would remain in confidence and in camera; therefore an

appeal to standing order 35 would not be accepted by the government of

British Columbia. However, Mr. Speaker, I can advise you that today I'm

prepared to discuss in confidence, with the leader of the official

opposition — at his convenience — the position of the government of

British Columbia.

With that said, the members of the opposition might reconsider their petition under standing order 35.

MR. ROSE: In view of the generous offer from the government

House Leader, I would be prepared to withdraw the petition for a motion

35 on behalf of the Leader of the Opposition. This side of the House

understands the delicacy of such negotiations, and we want to do

everything we can to support and encourage an agreement on behalf of

all British Columbians for that particular South Moresby park reserve.

In withdrawing the motion, we accept the government's offer. I'll relay

that information to the Leader of the Opposition.

MR. SPEAKER: Thank you, hon. members. In view of those statements, the Chair has no ruling to make.

HON. MR. STRACHAN: Mr. Speaker, I call committee on Bill 20.

TEACHING PROFESSION ACT

(continued)

The House in committee on Bill 20; Mr. Pelton in the chair.

section 34.

[ Page 1130 ]

MS. A. HAGEN: I hope that in that brief respite the Minister

of Education had an opportunity to briefly step outside the door and to

be refreshed from the examination of this bill — in view of his

addiction.

This particular

section is one that requires the registrar of the

College of Teachers to notify each board in the province — and the

minister — of reprimands, of termination or suspension of membership

and of suspension, or of cancellation of certificates of qualification

of the member, or of cessation of membership for any other cause.

Interjection.

MS. A. HAGEN: Certainly I recall the minister making a

comment just a moment ago about the matter of notification of each

board in the province — and obviously of himself — of the suspension or

the cancellation of a certificate, and the need for that and the

purpose of that, I think, is clear and one that we would acknowledge.

However, I wanted to ask the minister why such an action would take

place on the matter of reprimands.

My knowledge of a reprimand is that usually a letter is placed in

the personnel file of a teacher. Some examples of that that I might

cite are ones that may be associated with actions that really do not

have to do with the professional competence of the teacher but may have

to do with some kind of activity that has been associated perhaps with

their union, for instance.

Could the minister define just exactly what in fact may constitute a

reprimand in the spirit of this act, and why he feels it is necessary

for this particular punishment — if you like — to be distributed to

every single board in the province?

MR. CHAIRMAN: Minister of Finance. No, Minister of Education. We're having a bad day today.

HON. MR. BRUMMET: Sorry, I wish we were this far through my estimates.

You have to note that a reprimand — if you go back to the previous

section — is only applicable in a case of misconduct, not incompetence.

That's under

section 33, which makes the reference to

section 32(b) ;

there's no reprimand on the other section.

So it's only in a case of misconduct, and we have provided for a

couple of things here. Such a reprimand for misconduct is necessary so

that if a person has a series of reprimands for misconduct.... And

remember that before the college council makes that reprimand there has

been all this hearing process and all of that sort of thing, so when it

gets so far that the college is actually going to issue a reprimand to

a professional member, then I think the other hiring agencies and other

agencies involved are entitled to know that this person has been

reprimanded for that misconduct so that if it comes up again they will

be aware of it. It also provides in here,"unless otherwise notified by

the council," and that is a provision — remember these are professional

colleagues that are dealing with that — that if the reprimand is, I

suppose, not sufficient in their opinion to be distributed, then they

can otherwise notify the council.

MS. A. HAGEN: Thank you for your response, Mr. Minister.

We've noted on several occasions that there is a group of

professionals who may choose not to remain as members of the college

and who may still be teaching in the schools of the province. Some of

these are people whose certificate of qualification will have been

authenticated by the college, and some may have had their

qualifications authenticated by a superintendent of private schools.

I'm speaking of the teachers who work in the private schools of the

province and who may either, by virtue of choice, leave the college or,

by virtue of their certification coming through another process, be in

no way in a system that provides for any checks and balances against

their professional responsibilities.

Has the minister given any consideration.... ? I know one of his

concerns in bringing forth this particular act with its professional

College of Teachers is to ensure the highest professional standards for

those who do work with children. Has he given any consideration to this

loophole and to the fact that there are a significant number of people

teaching in the private school system who come outside of any

regulation except what may be available through their school boards?

Well and proper though that kind of measure may be, there is no means

to keep a record of any problems with teachers who may be discharged by

a private school board; no record of the performance and competence of

those people working with children.

HON. MR. BRUMMET: First of all, we do have in the independent

school system an inspector of independent schools employed by the

ministry. He can cancel their certificate; he has those powers.

Secondly, it has been brought to our attention that this could be a

problem, and that if they weren't members of the college and had a B.C.

teaching certificate, there is no action that the college could take

against them. So you'll notice the addition in the amendment,

section

35.1, to cover that.

[4:30]

Section 34 approved.

section 35.

HON. MR. BRUMMET: If I may, Mr. Chairman, I'm treating

section 35 as a separate

section which we can deal with, and then I can

introduce, as the amendment,

section 35.1.

MS. A. HAGEN: Mr. Chairman, I was really considering these as one motion — if I can just collect my thoughts here.

There are two suggestions about how a suspension of membership and

certificate of qualification may occur under this particular clause,

which is entitled "Effect of suspension." Subsection (

a) refers to

section 145 of the School Act, and it specifies the various regulations

or stipulations that govern a person's membership.

Then clause (

b) says: "other purposes the bylaws of the college

specify." Because the minister has quite often helped us to understand

the intent of these clauses by answering a question like the one I'm

going to pose, I will now pose it. What other effects of suspension of

membership and certification might the minister anticipate would be

included in the bylaws of the college? In other words, what might come

under clause 35(b)?

HON. MR. BRUMMET: The bylaws the college may want to specify

— just to make up an example — might be that when you are suspended,

you don't have to pay fees. So it has to leave that for other purposes

specified by the bylaws.

[ Page 1131 ]

That's all, really. The college will decide that

when a member's certificate is cancelled — that's for the purpose of

this first

section — they can't teach in the public school system in

British Columbia; secondly, the college may have another reason.

MS. A. HAGEN: I'm interested in the minister's comment, and

perhaps he could just briefly elaborate on what he might anticipate

would be another reason. I think I heard you say, Mr. Minister, that

section 145 of the School Act covers the right of that person to teach

in the school system. The bylaws might cover something beyond that

scope. Have you any suggestion about what that further stipulation or

that further consequence might be?

HON. MR. BRUMMET: In that

section (b), no. It's for "other

purposes the bylaws of the college specify," and I gave you one

example. They might say: "When your certificate is suspended, you don't

have to pay fees." They might make another bylaw to say that when your

certificate is suspended, you may not vote. In other words, if we don't

put that phrase in there, then the college may not be able to, say,

take away the right to vote or other things of that nature.

Section 35 approved.

HON. MR. BRUMMET: I move the addition of

section 35.1 standing in my name on the order paper. [See appendix.]

section 35.1.

MS. A. HAGEN: This amendment, it appears, does deal with a

process by which the certificate of qualification of a person teaching

in a private school may be lifted, and I presume it was made necessary

because there was no clear means by which that could happen, although

the minister did just mention that the inspector of schools has that

prerogative.

It has been difficult in our discussion to really deal with the

rights of teachers in the independent schools of the province. I am

somewhat concerned about what protections would be available for such a

person, if there is to be a possible lifting of her or his certificate.

It seems to me that that person might very well be better off as a

member of the college. We have been spending a good deal of time

understanding the checks and balances that have been built in and the

amendments which the minister has brought forward. Could the minister

give us some idea of what due process would be brought forward in the

suspension that the cabinet might authorize, and whether there would be

opportunities for hearings — for all of the things that have been

suggested as very important in the due processes that we have been

discussing under the potential rules by which the college will operate?

HON. MR. BRUMMET: Mr. Chairman, I think the first argument

was: how am I going to get rid of incompetent teachers in the

independent school system? Having established that I can and could, or

that we have an inspector, now you want to know how I protect them. So

it is an interesting debate.

However, it does say "for just and reasonable cause." So the

minister or the Lieutenant-Governor-in-Council would have to be able to

show just and reasonable cause to lift that certificate. Again, in the

phrase "who is not a member," a member has been defined as a member of

the college.

As you know, any new teaching certificates, and anybody who has one

now, would have to be issued by the college. So the college could issue

a teaching certificate because the person qualifies. Yesterday or the

day before — at some point in recent history — some members were

concerned that a teacher could get the certificate, then duck out of

the college and do all kinds of horrible things, and not be subject to

any discipline. I am inferring certain comments here.

This was put in so that if they are not a member of the college,

even if they get the certificate from the college, in effect the

minister, through the Lieutenant-Governor-in-Council, may cancel or

suspend a certificate of qualification for just and reasonable cause.

So there is that. There's the inspector of schools, and in the

independent schools act there are certain processes spelled out. They

also have boards, they have committees, and they have investigations

that they can deal with in that process, whether it's hiring

teachers.... Presumably if a board of an independent school was

interested in the value of a teacher's certificate, they would

certainly want to check before hiring. The minister will have the

information about any suspended certificates. Every board in the

province will have it, and in the register of members....

So if they phone and say: "Is this member registered in the

college...?" That's one assurance. "Have you kicked him out?" Those are

others. So there are all those processes between the independent

schools act and the independent schools inspector and the minister, who

can deal with any of those certificates.

MS. A. HAGEN: Mr. Chairman, does the minister then see the

same due process taking place for a teacher in an independent school

that we've been discussing taking place before the college becomes

involved in the matter, particularly of competence rather than

professional conduct? Because we've been discussing those two issues.

There's a due process in the matter of competence which stays in the

purview, if you like, of the board before a college becomes involved;

then there is a further process when professional misconduct is

involved, which I presume might be dealt with by the inspector and then

by the minister.

What I'm trying to get at here is the matter of the due process for

the teacher in that private school system and to understand what

avenues of appeal are available to her and how those are encompassed.

Because that person comes under the jurisdiction of this act at least

for the certificate of qualification; and, as you know, if anything

happens while that person is a member of the college, in the way of

suspension or reprimand, all of that information is presumably

available. But I want to know exactly what the minister sees as the due

process that would be accorded to this person and what appeal, other

than through the courts, that person would have if there were

suspension, cancellation of certificate, or what have you.

HON. MR. BRUMMET: Mr. Chairman, I'm trying to answer. We're

dealing with the Teaching Profession Act and the college. I think I've

done my very best to explain how the relationship of independent school

teachers, who have a B.C. teaching certificate.... I've done everything

I possibly can. I'm not about to, nor am I capable of, anticipating any

and every step in any process that can be taken anywhere in

[ Page 1132 ]

the independent school system. I can't answer your

question, not because I'm being obtuse but simply because I can't

anticipate every single step in every process. I'm saying, where it

cuts into here, that all these processes are looked after.

If you want to get into a full discussion of the independent

schools, I suggest there will probably be a couple of other full

opportunities — one, if there are any amendments, which I believe we

have to do in the independent schools act because of some of the budget

considerations.... The other one would be in my estimates, where we

talk about the funding. There are ample opportunities.

I find it difficult to anticipate whatever and anything that might or could or would be done.

MS. A. HAGEN: With a little latitude from the Chair, perhaps

I should have canvassed this question under 34, but it is germane to

the conduct of teachers in 35.1.

Am I to understand, Mr. Minister, that when the college is informing

both boards of any action it may take on reprimands, suspension, or

cancellation of certificate of qualification, the independent school

boards would also be informed of that information? I should truly have

asked that question with

section 34, but if the Chair would allow that

latitude....

HON. MR. BRUMMET: Mr. Chairman, I think I suggested that the

minister would be informed, and therefore the superintendent of

independent schools has access to that information, and therefore every

independent board, but we're not sending that out to every board

necessarily.

MS. A. HAGEN: So contrary to what might happen under the

college, where if this wasn't going out, people might have a central

registry where they might check about the record of every teacher, with

the independent schools there would be an accessible registry or record

where they could check. But it would be incumbent on them to check,

rather than there being information that would be available to them as

a matter of course. There is that difference, I would presume, in what

information is available to the boards of private schools as against

the information that is sent out to the boards of public schools. Does

that make sense?

HON. MR. BRUMMET: We do get pinned down, don't we?

When a board is notified, I assume that the superintendent of that

board is notified of this suspension. That superintendent, to me, in

any school board is the equivalent of the inspector of independent

schools, who is notified, and so the board would, when they're talking

about hiring a teacher, expect their superintendent to give advice as

to whether or not this person's name is on the list. An independent

school hiring a teacher who says he has a certificate has the same

access to the inspector of independent schools as any board has to the

superintendent they have. So it's not as though we're doing it

differently; it's just that there's a parallel situation there.

Section 35.1 approved.

section 36.

MR. JONES: Mr. Chairman, on the

section on reinstatement

there is a phrase there that I would like to inquire about, and it's

the phrase at the end of subsection (1) that suggests that the college

will "restore the person to membership in the college on conditions

that the council considers fit to impose by the resolution." It's one

of these legalistic-sounding phrases that I think is hard to get the

meaning of, and I just wonder if the minister could clarify that. Does

that mean the kinds of things that we were talking about earlier, such

as completing a course of study or appearing before a board of

examiners? Would that be the kind of conditions that the college may

see fit to impose on that person?

[4:45]

HON. MR. BRUMMET: Yes, I would suppose it does that. It also

refers back to what we were talking about in

section 33(f), where they

suspend for a fixed or indeterminate period, and that notification

might have to go out. Where there is a suspension, this

section says

that they can impose the conditions. For instance, if they tried to

refer.... If the problem was one of, say, addiction to alcohol, they

might say that they would suspend you for six months. I'm making up

examples. I'm always leery of making up examples, because it's not

taken as the total. But they might turn around and say that they were

aware he had had counselling and that he had it under control, and so

long as he kept it under control or continued counselling, or whatever

they felt was necessary, they could reinstate the member. It's leaving

the door open for that.

MR. JONES: I would also like to ask under that

Section if

there is.... This person is coming in from the other end, looking to be

reinstated. In the earlier process there was an appeal to the courts,

and I wonder if there is any appeal process envisioned here. Is there

appeal to the courts, or are there other appeal processes that can be

involved in the reinstatement of a former member?

HON. MR. BRUMMET: I'm not quite sure what the member is

getting at here. If you followed the whole due process in order to

suspend a certificate, surely if the person has met the terms and

conditions of that suspension or has corrected his condition, or this

council is satisfied that it's corrected, we shouldn't have a whole due

process to prove it's corrected. If it's not corrected, the conditions

may be that if this shows up again, he's out. So I don't see that we

have to have a whole due process for reinstatement.

MR. JONES: I think that if there has been appropriate due

process in the earlier part, perhaps it is not necessary in getting

back into the college. But I would also like to refer back to hearings

in the earlier part of the process conducted by the discipline

committee, when certain provisions and processes are brought in under

the Inquiry Act — the right to subpoena witnesses and evidence and that

kind of thing. I just wonder if this process also allows for those

protections, powers and procedures under the Inquiry Act. It seems to

me that if it was important in the earlier disciplinary process,

reinstatement should be treated equally. The reinstatement process, to

me, should be as important as the discipline process. So I would like

to ask the minister: shouldn't the provisions of the Inquiry Act be

extended to this

section as well?

[ Page 1133 ]

HON. MR. BRUMMET: I believe I said that there is no elaborate inquiry process for reinstatement, and that's all I can say.

MR. JONES: It seems to me that it was important to decide

whether the person was guilty or innocent of misconduct, or whatever,

at an earlier stage, and it was important to have witnesses, for

example, in that earlier process. Let's suppose somebody had a drinking

problem. How would that member, after having corrected that problem,

then prove that to the satisfaction of the board of examiners, unless

he could bring witnesses in? If I was guilty of having a discipline

problem and my membership suspended or terminated me, and I wanted to

become a member again, shouldn't I have the right to subpoena witnesses

to prove my renewed innocence or my correction of the problem of which

I was originally found guilty?

HON. MR. BRUMMET: It would seem to me that the process that

the member is suggesting is that there be the same or equivalent appeal

process in reinstatement. The discipline committee could go through the

whole inquiry and determine that because of misconduct, or whatever,

the member is out. The member suggests that he could immediately say:

"I ask for reinstatement. Having been found, through this whole

process, not suitable to be a member of this profession, I now appeal

for reinstatement." Going through that process, the inquiry could in

effect come up with the decision: no. Then the member could say: "I

would like to apply for reinstatement." You can see the possibilities

there. There is a whole appeal process to defend your right to be a

member and not to be thrown out; but having been thrown out.... I think

it's up to the professional organization to let people in.

I would suggest that there may be another route, that if a while

later the person came back to the qualifications and certification

committee and said, "I meet these requirements. Will you consider my

application?" they could in effect hear the person's application. But

surely we can't have a series of appeals. "You threw me out after due

process; now I want a due process to decide that I want back in." I

don't think it works in any profession, and I don't see how it could

possibly work here.

MR. JONES: I think I agreed earlier with the point that the

minister has just made. There seems to be a little bit of confusion

here about appeal and due process, and I see the two as different,

really.

Suppose I've been thrown out of the college, and for good reason,

but I've had an opportunity to correct that earlier problem; I've

rectified that problem. Now I'm coming back for reinstatement, and I

want the opportunity to prove to the college that I've been

rehabilitated. The college had the opportunity to subpoena witnesses to

prove that earlier I was guilty. When I've been thrown out and I'm

trying to get back in, why can't I have the same kind of opportunity to

assist me in proving my innocence at the reinstatement process? In

throwing me out, I presume that the college — and hopefully I — had the

opportunity, under the Inquiry Act, to subpoena witnesses to prove my

guilt or innocence. Why, when I'm trying to get back in after being

rehabilitated, can't I have witnesses at that stage, or subpoena

witnesses, to assist me in proving my rehabilitation? I'm not

suggesting that the act precludes that, but it seemed to be an

important

part in the earlier stages. I don't know why it's not an

important

part in the reinstatement process.

HON. MR. BRUMMET: There are two things here. Say the person

applies for reinstatement and they grant it. I can't visualize anybody

appealing against reinstatement. So we can get that one off the table

quite nicely.

If you look at

section 25(3), it says that the qualifications

committee may hear applications for membership and for reinstatement of

membership, and in a subsequent subsection, it says that they have the

full powers of an inquiry commissioner. So you've got it. Much to even

my amazement, we haven't missed anything. These people have been

wonderful in drafting this.

MRS. BOONE: There is a

section here, Mr. Minister, that once

this person is reinstated, a notice goes out to the province and to the

Minister of Education. I would imagine each board is involved there as

well. Is there provision there to remove the original statement taking

away their certificate