December

8, 1997

HOUSE OF ASSEMBLY PROCEEDINGS

Vol. XLIII No. 46

The House met at 2:00 p.m.

MR. SPEAKER (L. Snow): Order, please!

Statements by Ministers

MR. SPEAKER: The hon. the Minister of Education.

MR. GRIMES: Thank you, Mr. Speaker.

Mr. Speaker, the health and safety of our children, teachers

and other workers in the schools of Newfoundland and Labrador is my highest

priority as Minister of Education.

In light of concerns regarding air quality issues in our

Province's schools, last spring, $2.5 million was committed in the Budget to

address air quality problems. All school boards were advised that this funding

was available and were asked to identify schools which required immediate

attention. As a result, a number of improvements have already been taken and

others are currently in progress.

Mr. Speaker, funding has been approved for a new school for

Buchans and planning for the construction is under way. Since the new school

will not be ready for occupancy for some time, the board conducted air quality

testing in the existing Buchans school last spring. Over the course of the

summer, Mr. Speaker, remedial action recommended from testing, was carried out

to ensure that air quality was at acceptable levels and posed no health threat.

The board has further advised that in September, tests were carried out again

and they showed that levels of fungi and CO 2 readings were within

normal limits.

However, Mr. Speaker, the board then conducted further

testing in November and was advised that the fungal contamination was at levels

deemed unacceptable and had to be removed from the school. In discussion with

the parents, the board decided to close the school last Thursday, December 4

until the problem was rectified.

At no time, Mr. Speaker, did the Occupational Hygiene

Technologists recommend that the school be closed, however, I am satisfied that

the board acted responsibly in closing the school, given the level of parental

concern in the community.

Mr. Speaker, I have been advised that the Director of

Education for District Five, along with an Occupational Hygiene Technologist, is

meeting with the school council and the parents of Buchans today. I understand

the concern of parents and, as Minister of Education, want to assure parents

that the school will not be reopened until all health and safety concerns have

been adequately addressed. My officials were in contact with the board today and

will continue to work closely in an effort to resolve the problem.

Mr. Speaker, in conclusion, let me assure Members of the

House of Assembly and the people of the Province that the safety of our

students, teachers and other school-based workers will not be compromised and

that funding is available to address air quality problems in our schools. Boards

have been advised to submit applications to the School Construction Board, funds

have been approved and action has been taken.

To provide further assurances, Mr. Speaker, I am providing a

copy of an Indoor Air Quality Study undertaken during the Spring of 1995. As

previously indicated, Mr. Speaker, school boards were provided with this

information so they could initiate appropriate action and they are doing so.

Thank you, Mr. Speaker.

MR. SPEAKER: The hon. the Member for St. John's East.

MR. OTTENHEIMER: Thank you, Mr. Speaker.

The lesson that we all learn here, Mr. Speaker, is the

absolute requirement to publicly disclose information which so directly affects

the public, in particular the parents and the children of this Province. Not to

disclose, Mr. Speaker, breeds suspicion and uncertainty and that was really many

of the problems. The parents of this Province did not know what the situation

was in their particular community and in their particular school.

I say to the minister, that our parents and our children

deserve much better. I also say to the minister that it is inexcusable that a

study which was carried out almost two years ago and recommendations which were

forwarded to some of the superintendents and directors exactly one year ago -

according to one director, Minister, he did not receive it. On exactly one year

ago, to the very day, Mr. Speaker, correspondence was sent to directors with

respect to the recommendations.

Here we are, one year later, and it is now only being

provided to the parents and the children of this Province, and I say to the

minister, I am glad he has released this information today, because on Friday

afternoon, late Friday, I received the recommendations and had he not disclosed

it publicly this afternoon, I would have.

Thank you, Mr. Speaker.

Oral Questions

MR. SPEAKER: The hon. the Leader of the Opposition.

MR. SULLIVAN: Thank you, Mr. Speaker.

My questions today are for the Minister of Health.

In July of this year, a woman with a history of heart

problems was taken by ambulance to the Health Sciences Centre, Emergency

Department. She was experiencing severe chest pains and pains in the arm. Two

hours later the woman was sent home, and later that night the family took that

person back to the Health Sciences Centre because the severe pain had persisted.

That lady was admitted to the Coronary Care Unit and

unfortunately, she died in that unit five days later. A time of twenty hours had

elapsed from the time the lady arrived at the hospital until she was admitted

after her second trip.

I ask the minister, is the system failing our people because

government's Budget cutbacks have forced hospitals to put restrictions on

admissions?

MR. SPEAKER: The hon. the Minister of Health.

MS J. M. AYLWARD: Thank you, Mr. Speaker.

I am not at liberty to comment, nor do I know the details of

the particular case to which the member opposite refers, but I will say again as

I have said before, that people who require admission, albeit not nearly as

quickly as they would like, are put either in an Emergency Department or are

admitted as soon as possible. In this particular case, I think the hon. member

is talking about a situation where a physician obviously made the decision that

admitting that particular person was not required at that time.

I am not in a position to contradict the views or the

assessment that physician made with that particular patient at that particular

time; however, if the member feels there has been some misdiagnosis or other

forms of neglect or negligence, I suspect he would make the information known to

me, I would make it known to the appropriate officials, and we will follow

through from there.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Leader of the Opposition, a

supplementary.

MR. SULLIVAN: Thank you, Mr. Speaker.

Hansard will indicate what my question was, I say to the

minister. She is trying to step around it.

This woman's sister also, seven months earlier, went to a

hospital with a similar problem and was sent home. Unfortunately, she died at

her home that day.

If the minister remembers, back in 1994, a constituent of

mine was sent home from hospital and a judicial inquiry was conducted into that

death. Justice David Orr recommended, in his report released in 1995, and he

stated: Steps should be taken to ensure that patients who are identified as

having cardiac problems -

MR. SPEAKER: Order, please!

The hon. member is on a supplementary. He ought not to be

reading extracts from letters or other papers or other documents.

MR. SULLIVAN: Thank you, Mr. Speaker.

I make reference, in light of the fact that Justice David Orr

recommended -

AN HON. MEMBER: (Inaudible).

MR. SULLIVAN: This is the question.

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

MR. SULLIVAN: In light of the fact that he recommended

that people with heart problems who come to emergency be seen by a cardiologist

at the first possible time, preferably at the time of arrival at hospital, I ask

the minister: Why is this judicial inquiry's recommendation not being followed

by your department?

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Minister of Health.

MS J.M. AYLWARD: Thank you, Mr. Speaker.

In response to the

preamble, I would say to the member

opposite that physicians make the diagnosis. They will do what they see as fit.

We do not intervene in the day-to-day operation of a hospital, and I am sure

that in a publicly-funded system we all have had experiences whereby we would

have liked to have gotten in sooner, but I will say it again in this House as I

have said publicly, we have a publicly funded system. We take turns. We follow

the appropriate assessment in diagnosis, and follow what the physician

prescribes; and, Mr. Speaker, as long as we have a publicly-funded system, that

is how it will operate. If we wanted to have service as you want it and have to

pay for it, God help us all, we are in a private funded system and Newfoundland

would clearly be at the end of the line at that point in time.

MR. SPEAKER: A supplementary, the hon. the Leader of the

Opposition.

MR. SULLIVAN: Thank you, Mr. Speaker.

This inquiry - and a prominent cardiologist here in the city

indicated that that person in 1994 could be alive today had they seen a

cardiologist. I say to the minister, the recommendation to your department and

to the people was, when someone has a history of heart problems and they come to

an emergency department they should see a cardiologist. I ask you, minister, has

your department incorporated that recommendation into its emergency room policy?

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Minister of Health.

MS J.M. AYLWARD: Mr. Speaker, I would like to say for the

record that I have every confidence in the nurses that do the assessments in the

emergency departments and every confidence in the nurses that do the triage, in

other words, the priority assessment. In fact, Mr. Speaker, it is important that

every patient sees the appropriate physician and/or specialist. I have

confidence, Mr. Speaker, in the nurses and the doctors that they make the

appropriate assessment. Albeit, they are human beings and I am sure from time to

time they make a mistake but I do have confidence in the doctors and nurses and

in the system that we have. We will always be able to find a case where

something happened that is extremely unfortunate and one that we would like to

correct. We are open to that, Mr. Speaker, but I am not going to come and say

that doctors are misdiagnosing everyday or that people -

AN HON. MEMBER: (Inaudible).

MS J.M. AYLWARD: - who need to see the appropriate

physician see the appropriate physician and I stand by my confidence in the

doctors and nurses and in our health care system, Mr. Speaker.

MR. SPEAKER: A supplementary, the hon. the Leader of the

Opposition.

MR. SULLIVAN: Thank you, Mr. Speaker.

A recommendation that hopefully would save lives in the

future was that a person with a history of cardiac problems should be seen by a

cardiologist. I ask the minister simply, has her department incorporated this

policy into emergency rooms so that these future deaths could be avoided? Has

the minister done that and is that being carried out?

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Minister of Health.

MS J.M. AYLWARD: Thank you, Mr. Speaker.

I don't need to tell the doctors and nurses in any emergency

department, when a person -

AN HON. MEMBER: You should.

MS J.M. AYLWARD: Should I? The member is saying that I

don't have confidence. He is the one, Mr. Speaker, that does not have confidence

in the doctors and nurses. I don't need to tell the doctors and nurses in the

emergency department to do an EKG, an assessment on anybody coming in with chest

pains. I have more confidence in their skill and expertise, Mr. Speaker, and

maybe he should try to develop some as well.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: A supplementary, the hon. the Leader of the

Opposition.

MR. SULLIVAN: Thank you, Mr. Speaker. I have a lot more

confidence in them than I have in the minister, I can say. A lot more

confidence.

SOME HON. MEMBERS: Hear, hear!

MR. SULLIVAN: It is the minister's job to dictate policy

to people in our health care system. That is the job you were appointed to do

and you should do it, I say to the minister. Minister, will you act? If you

haven't done it up to now, would you now act to ensure that this recommendation

of the Lynch Inquiry is put into place so we can prevent unnecessary deaths in

the future?

MR. SPEAKER: The hon. the Minister of Health.

MS J.M. AYLWARD: Thank you, Mr. Speaker. Perhaps the

minister doesn't have much confidence in me, and I can say I don't have much

confidence in him either. Because I have a lot of confidence in our front-line

staff -

SOME HON. MEMBERS: Hear, hear!

MS J.M. AYLWARD: - and I don't need, Mr. Speaker, as

Minister of Health to set protocols for the nurses and doctors in emergency

rooms to do EKGs and assessments. I think the physician to which he refers knows

that as well, because I also have confidence in his abilities. In addition, it

is true, this department is responsible for setting policies. Every single

department, in the hospital particularly, in the critical care units, have their

own protocols for assessment.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: A supplementary, the hon. the Leader of the

Opposition.

MR. SULLIVAN: Mr. Speaker, it is possible that this lady

could be alive today if a cardiologist was consulted. The family wrote you three

months ago, minister, and you said it would be reviewed by Sister Elizabeth

Davis and she would respond to the family and to you as minister. Now, why is

this family waiting three months for an explanation, minister, of what went

wrong?

MR. SPEAKER: The hon. the Minister of Health.

MS J.M. AYLWARD: Mr. Speaker, I will say it again,

because I think it is important to restate that there are policies and protocols

in place, not only for cardiac patients, but for all other patients. I really

think it is irresponsible to make a connection between a protocol and this

particular person's death. I think I do not know the full details of what

happened at that particular time. I'm sure the doctors and nurses are very

familiar with it.

I will say again that Sister Elizabeth Davis is in the

process of reviewing, through program-based management, the whole program, not

only of cardiology, but of cancer treatment, of paediatric care, of elderly

care, the whole protocol is in place, and it is happening as we speak.

I will stand by my statement that there are protocols in

place in ICU, in emergency rooms, whereby if someone comes in and presents with

chest pain there is a protocol, an assessment, that is followed. I continue to

say, I have confidence in the doctors and nurses there.

MR. SPEAKER: A supplementary, the hon. the Leader of the

Opposition.

MR. SULLIVAN: Thank you, Mr. Speaker.

The inquiry report is not worth the piece of paper it is

written on if we are not going to do something about the recommendations.

SOME HON. MEMBERS: Hear, hear!

MR. SULLIVAN: Minister, you can talk about policy, you

can talk about protocol, you can talk about what you like. This lady with a

history of heart problems and chest pain was not seen or referred to a

cardiologist, but was sent home, and died within a matter of days - and her life

could have been saved.

I am asking you, as minister, will you do what you should do

as minister to ensure that, in the future, every single person in this

predicament, in line with this recommendation, follows the proper procedure, and

we might save another life.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Minister of Health.

MS J. M. AYLWARD: Thank you, Mr. Speaker.

I will give the same answer to the same question that has

been asked the last five times. I have confidence in both the physicians and the

nurses as they do their assessments and deliver their services in all the areas

of health. I know, Mr. Speaker, we always have room for improvement in our

health care system and where it is needed it will be done, but I can also say

that when a person presents in a emergency room with chest pain, there is a

protocol that is followed, and I do believe, Mr. Speaker, that the nurses in

there that do the initial assessment on any patient that comes in with chest

pain, knows that it is most appropriate to do a full assessment, part of which -

and which they do themselves in the emergency rooms - is an EKG. Based on the

outcome of that EKG, a physician will read that result and, Mr. Speaker, the

appropriate referral is made from there.

MR. SPEAKER: The hon. the Member for St. John's East.

MR. OTTENHEIMER: Thank you, Mr. Speaker.

I have just a couple of questions to the Minister of

Education with respect to the

summary of interim measures which were provided as

a result of the study conducted in the spring of 1995.

It was found, Mr. Minister, that not even one school tested

had adequate ventilation and the report recommended installing new ventilation

systems in all of the schools, but in the meantime, it recommended several

interim measures such as opening windows at regular intervals.

A year later, can the minister tell us how many of these

fifty schools have had adequate ventilation systems installed since the report

was released, or is the minister's best advise to open the windows throughout

the winter?

MR. SPEAKER: The hon. the Minister of Education.

MR. GRIMES: Thank you, Mr. Speaker.

I appreciate the question again and I am saddened again to

see the approach taken by the Opposition critic for Education.

MR. SPEAKER: Order, please!

MR. GRIMES: It is clear, Mr. Speaker, I think, to anybody

listening that the hon. member opposite is not particularly interested in

dealing with the issue, but would rather score some political points with

respect to this very serious topic.

In fact, even with respect to information that I forwarded to

him following his questions on Friday - because I thought he was sincere about

the issue. When I did clarify for him, I gave him a copy of the memo that went

out to all ten directors indicating that they had been given the results for the

schools in their district, that there had been a meeting convened of all

twenty-seven superintendents a year before that, Mr. Speaker, and that this

report has been in the hands of the people who are actually dealing day-to-day

with the running of the schools. The same member, Mr. Speaker, would stand in

the House today and suggest that he knows of a superintendent or a director who

does not have the information.

So, he is not interested at all, Mr. Speaker, in dealing with

an issue - this is a very serious issue, the school boards having been taking it

very seriously, and in fact, in circumstances where even last year, when we did

not have a fiscal budgetary allocation for the major corrections that are needed

in the school, some mechanical ventilation systems were installed in the most

needy circumstances as a matter of priority. In this fiscal year, for the first

time ever, the government budgeted $2.5 million, there are requests before the

Provincial School Construction Board for the installation of mechanical

ventilating systems in schools like Bishop's Falls where some students are still

out of school today; they are being designed, Mr. Speaker, it is a work that is

in progress.

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

MR. GRIMES: The school boards at least are taking it very

seriously and trying to do what is -

MR. SPEAKER: Order, please!

I ask the hon. minister to finish his answer quickly.

MR. GRIMES: - in the best interest of the students, the

teachers and the workers in the school.

MR. SPEAKER: The hon. the Member for St. John's East, a

supplementary.

MR. OTTENHEIMER: Mr. Speaker, I regret the slant that the

minister puts on this.

I agree with him, it is a very serious issue. We as a Party,

will not abdicate our responsibility to ask the important questions as it

relates to the health of our children. I, as critic, will not abdicate my

responsibility, but I suggest, Mr. Minister, in your refusal - in your refusal

to share with the people of this Province the particulars and the details of

this report, you, Sir, have abdicated your responsibility.

MR. SPEAKER: Order, please!

I ask the hon. member to get to his question.

MR. OTTENHEIMER: Mr. Speaker, the minister is aware that

the report recommends that as an interim measure, while new ventilation systems

are installed, class sizes be decreased to under thirty students and if possible

MR. SPEAKER: Order, please!

I ask the hon. member to get to his question - he is on a

supplementary.

MR. OTTENHEIMER: - eleven to twenty students. I ask the

minister: Has he taken measures to decrease class size to those levels for the

health of our students until new ventilation systems can be installed?

MR. SPEAKER: The hon. the Minister of Education.

MR. GRIMES: Thank you, Mr. Speaker.

Again, in the rhetoric that is associated with the matter by

the hon. Education critic, again he talks about a refusal to share which is the

slant that he tries to put on the issue publicly.

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

MR. GRIMES: How, Mr. Speaker, anybody can suggest that

testing that was done - and if I can put this in context, Mr. Speaker, because

it is important - testing that was done and initiated by the Department of

Education, not because parents had come forward and said: We think we have a

problem.

The Department of Education in May and June of 1995, asked

that testing be done on a random basis; fifty-five schools were tested.

Immediately upon receiving the results, recognizing that where carbon dioxide

levels - because that is all that was tested, Mr. Speaker, carbon dioxide levels

- immediately upon receiving the report that suggested that the schools were

deficient, the information was provided immediately to the twenty-seven

superintendents so that they could deal with the students -

MR. SPEAKER: Order, please!

MR. GRIMES: - the teachers, and the workers in their

schools.

MR. H. HODDER: On a point of order, Mr. Speaker.

MR. SPEAKER: Order, please!

The hon. the Government House Leader, on a point of order.

MR. H. HODDER: Mr. Speaker,

Section 408 of Beauchesne

requires ministers, in responding, to deal with the matter raised. In this

particular case, the minister was asked, based on his recommendation, what is he

doing about class size, is he going to reduce it, is that the strategy he uses?

So I draw the attention of the Speaker to the requirement of

Section 408 to deal

with the question that has been asked.

MR. SPEAKER: Order, please!

Again, I remind hon. members that our own Standing Orders and

the Parliamentary authority that we use, Beauchesne, are quite clear on how

questions should be asked, how answers should be given and the reason, of

course, is that, in presenting questions there should be no

preambles, there

should be no statements made before questions. That tends to lend to debate in

Oral Questions and answers usually to try to deal with

preambles.

From now on, I ask hon. members again, to remember that when

they are presenting questions, there should be no

preambles particularly on the

supplementary questions. Ministers, in answering those questions, should be

brief.

AN HON. MEMBER: (Inaudible).

MR. SPEAKER: Order, please!

Ministers should be brief and deal with the matter raised.

I ask the hon. minister to quickly get to his answer.

MR. GRIMES: Thank you, Mr. Speaker.

I was pointing out in the

preamble that did not occur because

it is not allowed under the rules, the point of the member opposite is that he

continues to talk about a refusal to share. The information was shared. It

contained a whole list of interim measures, one of which was to reduce some

class sizes; and, to the credit of the school boards who have been treating this

very seriously, because it is serious -

MR. SPEAKER: Order, please!

MR. GRIMES: - they have implemented a number of the

interim measures, as many as they possible could in each of the circumstances -

MR. SPEAKER: Order, please!

I ask the hon. the minister to conclude his answer quickly.

MR. GRIMES: - where testing occurred.

MR. SPEAKER: The hon. the Member for St. John's East, a

supplementary.

MR. OTTENHEIMER: Thank you, Mr. Speaker.

I will ask the question again and I will include the very

first recommendation, of which there are twelve - the very first recommendation:

Has this minister done anything to decrease class size to under thirty students

and, if possible, eleven to twenty students, especially for older students (high

school students).

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Minister of Education.

MR. GRIMES: Thank you, Mr. Speaker.

Maybe the hon. member is showing his ignorance as to how the

system operates. The Minister of Education does not run a single school in this

Province other than the School for the Deaf. That is one that is completely and

totally under the jurisdiction of the Department of Education.

What we did was provide those twelve interim measures, as was

acknowledged by the member opposite, to each of the twenty-seven superintendents

in the first instance, and then we re-sent the recommendations to the ten new

directors. I gave him a copy of the memo, and he still suggests there are people

who did not get them. We sent the information out so that those who are charged

with the responsibility under the Schools Act to run the schools would know what

the recommendations are, and that of the twelve recommendations, one of which

was to try to have some smaller class sizes, that the combination of those

twelve that they could manage would assist in making sure that air quality in

the schools was as good as it could possibly be so that there would not be any

health risks to the students, the teachers, and other school-based workers in

the schools of the Province.

MR. SPEAKER: The hon. the Member for Bonavista South.

MR. FITZGERALD: Thank you, Mr. Speaker.

My question is for the Minister of Fisheries and Aquaculture.

Minister, the Fisheries Loan Board, as we knew it, has all

but disappeared. Loans are now very difficult to access, and government has been

putting the heavy hand on fishermen in their efforts to collect outstanding

loans. No one will argue the fact that the particular loan board needed fine

tuning, and if anybody had the financial ability to pay then they should.

Would the minister inform the House if fishermen are still

using the Fisheries Loan Board and, if not, where are they obtaining financing

for major purchases today?

MR. SPEAKER: The hon. the Minister of Fisheries and

Aquaculture.

MR. EFFORD: Mr. Speaker, I apologize to the hon. member

that I did not hear the first part of the question because one of my colleagues

was talking to me. What was the first part of the question?

MR. FITZGERALD: The question was, Minister: In view of

the fact that the fishermen now are not accessing the Fisheries Loan Board as

they once did, because it is very difficult for them to receive funding there

for major purchases, where are the fishermen receiving funding now for the

purchase of gear and replacement of boats, etcetera?

MR. SPEAKER: The hon. the Minister of Fisheries and

Aquaculture.

MR. EFFORD: Mr. Speaker, my experience with the fishermen

is, there are several different ways they are getting financing. A lot of the

fishermen, those fishermen who are doing probably very well in the industry

today, the larger boat fishermen, most of them have their own ability to arrange

financing, either their personal money or they arrange financing through an

appropriate bank which they have been dealing with over the years.

Fishermen who are in the fishing industry and who need to

upgrade their boats, or buy new engines, or get new gear, if they do not have

their own means to do it, are going through the processes which they deal with

to arrange financing either directly from the processor or by assistance through

a bank, whereby they probably would have to sign a loan guarantee.

Another manner in which they are doing it is that some of the

fishermen can go to a bank themselves, having a good credit standing with the

banks. Apart from that, some of them are going through the loan board. There are

still some loans given out through the Fisheries Loan Board.

MR. SPEAKER: A supplementary, the hon. the Member for

Bonavista South.

MR. FITZGERALD: Minister, what you are saying, you just

alluded to it I guess in admitting it, is that processors today, fish merchants,

are the people who are providing loans to fishermen. What we are reverting to is

right back to the old fish merchant days again -

MR. SPEAKER: Order, please!

MR. FITZGERALD: - where fishermen -

MR. SPEAKER: The hon. member is on a supplementary.

MR. FITZGERALD: - have to go sign over their catch in

order to access loans in order to make purchases. Does the minister agree with

this particular situation?

MR. SPEAKER: The hon. the Minister of Fisheries and

Aquaculture.

MR. EFFORD: Yes, I was just going to say, Mr. Speaker,

that would be a matter of personal preference. If I was in the fishing industry

today I may or may not do it. It would depend on the type of deal I could make

with a particular processor, if I didn't have the means of arranging the money

myself, either personally or through a bank. But I would certainly not draw a

conclusion today whether they should or should not do it. It depends on the

circumstances surrounding each individual deal. I know there are many companies

here in this Province which I would recommend that fishermen seek assistance

through a particular company, there are others I probably wouldn't.

MR. SPEAKER: A supplementary, the hon. the Member for

Bonavista South.

MR. FITZGERALD: Minister, what we see happening here is a

vicious circle whereby fishermen have to go to fish merchants to access funding

to make major purchases. The fishermen have to sign agreements to sell their

catch -

MR. SPEAKER: Order, please!

MR. FITZGERALD: - to this particular merchant -

MR. SPEAKER: The hon. member is on a supplementary. He

ought to get to his question.

MR. FITZGERALD: - and as a result we are seeing the old

fish merchant days whereby the buyers control the fishermen and their

enterprises all over again. I ask the minister if this is his idea of how the

fishery of the future should unfold?

MR. SPEAKER: The hon. the Minister of Fisheries and

Aquaculture.

MR. EFFORD: Mr. Speaker, how the fisheries of the future

should unfold would take me at least several hours to tell the hon. member. If

sometime you would like to hear that, come over to my office starting at 7:00 in

the morning and I will take all day and tell you how the fisheries of the future

should unfold. I would not be able to answer today here in the two or three

minutes remaining in Question Period. How the fisheries of the future should

unfold as far as the financing of the fisheries is concerned is something that

we will wait until January 15 when the task force comes back with its report.

MR. SPEAKER: The hon. the Member for Baie Verte.

MR. SHELLEY: Thank you very much, Mr. Speaker. My

questions today are to the Minister of Forest Resources and Agrifoods. Of course

there are a lot of concerns being raised in the forest industry throughout this

Province. One person referred to it as it is dying a slow quiet death. Just this

weekend past there was another meeting in McKay's on the West Coast that the

minister knows about. The same concerns are being raised over and over.

It is just almost a year ago now that our twenty-year

forestry plan was released by the government, and also of course the wood supply

analysis. I would like to ask the minister now if he still feels comfortable

today if there is a sustainable cut in our forest industry.

MR. SPEAKER: The hon. the Minister of Forest Resources

and Agrifoods.

MR. K. AYLWARD: Mr. Speaker, first off I want to thank

the member for the question. Yes, we have confidence in our department that

there is a sustainable yield for the future and an annual allowable harvest that

will allow for a continuation of our industry. There are some stresses in the

system in the next few years but we all acknowledge that.

One of the things that we are doing in a major way, and the

previous minister was involved in this activity, was to get the sawmill industry

to move forward. It has done this very much in a major way in the last couple of

years. We are going to be focusing on jobs in rural Newfoundland and Labrador in

the next number of months in a major way, and the forest sector is contributing

greatly to that. We are very much working with the industry, working with the

companies, working with communities, to plan the proper harvest of our forest so

we do it in a sustainable way.

MR. SPEAKER: A supplementary, the hon. the Member for

Baie Verte.

MR. SHELLEY: Thank you, Mr. Speaker. I'm glad to say to

the minister that yes, sawmills and so on in rural Newfoundland and those

(inaudible) will hopefully be good in the next few years. There is a still a big

concern out there about how sustainable it is. One concern that was raised this

week and is continuously raised is the use of mechanical harvesters in this

Province.

You can take all the statistics from this book or anywhere

across this Province, the simple statistic is this. There is more being

harvested in this Province and there are less people being used to harvest. That

is the simple statistic that is straightforward. I would like to ask the

minister: With respect to mechanical harvesters in the Province, is there a new

policy being developed with the state of these harvesters? What is the minister

going to do about it?

MR. SPEAKER: The hon. the Minister of Forest Resources

and Agrifoods.

MR. K. AYLWARD: Mr. Speaker, I remember about five years

ago when pulp and paper mills across Canada, three or four, were offered for a

dollar to the communities because there was too much newsprint in the

marketplace.

Mr. Speaker, technology is in the forestry sector like it is

in a lot of other sectors. What we are doing is sitting down with the forest

industry and the pulp and paper companies and saying to them: if you have to

have application of technology then let's work together on that application but

we are also saying to them at the same time that we want jobs created in rural

Newfoundland in the forest sector. In the next few months you will receive some

new announcements coming forth about some new initiatives where we are going to

see a lot more jobs created in this Province, in rural Newfoundland and

Labrador. We need to use our wood supply better than we have in the past. The

department here, in the last three or four years, has done a very good job in

moving forward with a new policy of utilizing our trees in a much more better

way and getting much more value added out of those trees, Mr. Speaker, and

that's how we are going to deal with it. We cannot ignore technology, Mr.

Speaker, but we also have to work with technology and work in other sectors of

the forest industry to create new jobs.

MR. SPEAKER: A supplementary, the hon. the Member for

Baie Verte.

MR. SHELLEY: Mr. Speaker, there is no doubt about it that

any company who wants to progress technology has to go forward also at the same

time but, Mr. Speaker, many people in this Province - it is the same analogy

that we saw across the Province with the fishery. The fishermen were telling us

for years but we didn't listen. Well I am telling the minister today that the

loggers are telling us every single day and the minister knows also - the bottom

line, Mr. Speaker, is mechanical harvesters are being increased every day. Now I

would like to ask the minister, can he confirm that Abitibi and Kruger, both

major companies, and some private contractors are considering increasing

mechanical harvesters in the Province again this year and therefore taking away

more jobs from the logging industry?

MR. SPEAKER: The hon. the Minister of Forest Resources

and Agrifoods.

MR. K. AYLWARD: Mr. Speaker, I can confirm that the

companies are planning to do harvesting. I have not sat down with them and

talked about the exact details of what equipment they are going to buy this year

but I can say to you, Mr. Speaker, that what we are sitting down and talking

with them about - and we have in the last few weeks, in the last few months - is

to make sure that there is a focus on creating employment in the forest sector

and we are going to keep doing that. Mr. Speaker, Abitibi Price and Consolidated

Stone came together just recently. The forest industry around the world is

consolidating down to seven or eight major players. We are going to be sitting

down with them shortly to talk about the future in our forest industry and how

we maximize jobs. So we are going to be working to ensure that we have more jobs

in the forest industry. In one sector there may be less but in other sectors

there is going to be more.

MR. SPEAKER: The time for Oral Questions has elapsed.

Before we call Notices of Motion, I would like to welcome to

the House of Assembly today, in the public Galleries, three councillors from the

Town of Fogo, Mr. John Greene, Mr. Everett Payne and Mr. Lloyd Hart accompanied

by the town clerk, Bruce Pomeroy.

SOME HON. MEMBERS: Hear, hear.

Petitions

MR. SPEAKER: The hon. the Member for Cape St. Francis.

MR. J. BYRNE: Thank you, Mr. Speaker.

I again rise today in my place to present a petition on

behalf of a number of people who have a problem with the proposed unfair,

unjust, morally wrong tax that has been proposed by the Minister of Finance on

used vehicles.

Now, I have brought this up a number of times in this House

of Assembly and in the media and what have you, Mr. Speaker, and the opposition

now in the public is starting to mount. I have asked the minister a number of

times would he back-off on this and go with a different system which would be

fairer to the people in the Province which would honour the people with respect

to having integrity and what have you.

The minister has stood in his place and said that there are

people out there - the public - that present false bills of sale. They come in

with a bill of sale and they buy the car for more than what is actually in the

bill of sale, but the problem is, that if that is happening - and it could very

well be happening - but you cannot rationalize bringing in an unfair system by

that statement alone, Mr. Speaker, but if that is happening, people in this

Province are trying to survive. With the down loading and the increased taxes

that this administration has brought in over the past few years, there are

people who are trying to survive, to eke out a meagre existence and if they can

get away with certain things they are going to do it, but if they bring in

possibly a proposed affidavit system, even with the seller and the purchaser

having to sign the affidavit, it may alleviate some of the problems that the

government is having with respect to this issue.

Now, Mr. Speaker, I was in my district this weekend and

attended a number of functions. I attended nine different functions all over the

place and I do not know how many people came up to me - numbers and numbers of

people -

AN HON. MEMBER: Eight.

MR. J. BYRNE: Nine. Were you there? Nine, Mr. Speaker,

and there were two I could not make. Many people came up to me and said what the

government is proposing here is unjust, they cannot have it, they will not - and

I said it before in this House of Assembly, that if they bring in this tax it is

going to be the straw that broke the camels back.

AN HON. MEMBER: (Inaudible).

MR. J. BYRNE: Mr. Speaker, I would like to see people

being treated with integrity, the people out there are not all crooks. That is

what I would like to see and if there is a problem out there be proactive and

deal with the problem, don't make the innocent pay for the guilty, don't make

the innocent pay for the sins of the guilty, Mr. Speaker, that is what I am

saying. If there is a problem out there go after those individuals, don't go

after other people. There are lots of reasons why a person may sell a car for

less than the assessed value, there could be any number of reasons. It could be

the condition of the car, it could be the mileage of the car, it could be a car

sold to someone leaving the Province and that is not strange these day in this

Province, Mr. Speaker, someone leaving the Province - being forced to leave and

they had to sell their car or truck in a hurry. So, there could be any number of

reasons, any number of reasons why a person would sell a care for less than the

assessed value.

The assessed value of a vehicle - the Minister of Finance

presents a study of three months, January 1, 1996 to March 31, 1997 - three

months and all they looked at was the assessed value, they did not look at

condition, mileage or the age of the car, anything like that, Mr. Speaker. So,

there are many reasons why a car can be sold - and I again ask the Minister of

Finance on behalf of the people of this Province, the hard working - especially

the working poor, Mr. Speaker, that he back-off with this proposed tax and look

at something a bit more reasonable where the people could possibly afford to pay

a tax. As a matter of fact, Mr. Speaker, maybe he should look at the new

vehicles. Some of the ministers on that side driving the big Land Rovers and

what have you, maybe they should be paying more in taxes - and the Jags and the

Lincoln Contentional and what have you. That is what they should be looking at,

not looking at the poor, breaking the back of the poor in this Province.

Thank you, Mr. Speaker.

MR. SPEAKER: The hon. the Member for Bonavista South.

MR. FITZGERALD: Thank you, Mr. Speaker.

I stand to support the petition as put forward by my

colleague from Cape St. Francis. This member is continually getting up and

speaking on behalf of the people of Newfoundland and Labrador, the common people

out there in the trenches, bringing forward a petition whereby those people are

echoing their concerns about the possibility of a piece of legislation being

introduced in this House by the Minister of Finance whereby people have to pay

taxes over and above the purchase price of items that are bought here in this

Province today.

Mr. Speaker, I wonder sometimes, when I hear the ministers

get up and take

part in the program that VOCM has on the radio station, `I

believe in Newfoundland and Labrador', I sometimes wonder where they are coming

from. You hear the Minister of Finance, and you hear the Government House

Leader, get up and repeat, `I believe in Newfoundland and Labrador'. How can you

believe in Newfoundland and Labrador if you don't believe in the people? How can

you go out on one hand and say, I believe in Newfoundland and Labrador but I

don't believe the people. I think the people are lying. They are not to be

trusted. We can't trust the people of this Province to bring forward a statement

AN HON. MEMBER: (Inaudible).

MR. FITZGERALD: That is what you are saying. You are

saying we cannot trust the people in this Province to bring forward a statement

saying that this is what they paid for a certain item. Instead, we are going to

go out and say: No, we don't believe you. We will tell you what this item is

worth. We will tell you what taxes you are going to pay on it because we don't

believe the people. We don't believe the people. They are not to be trusted.

Mr. Speaker, it is time that we started believing the people.

It is time we started trusting people.

The Minister of Finance came forward the other day and

brought forward an example where there was some vehicle sold with a cash value

of, I think, something like $100 or $200, and the red book showed a value of

$3,000 or $4,000, probably even higher than that. Mr. Speaker, the first place

that somebody has to go today when they purchase a vehicle is into Motor

Registration in order to get that particular vehicle registered. They can also

pay their taxes there. Somebody has to handle the transaction. That is one place

that is not completely computerized yet. You have to go and you have to deal

with people. If somebody sees a situation whereby there is a 1996 Chevy pick-up

sold for $200, then the flag should go up. The flag should go up immediately,

and they should be asked to bring the vehicle in to have it inspected. Ask them

to show the reason why it was sold for $200. There might be a very good reason.

The vehicle could be damaged.

AN HON. MEMBER: The engine could be gone.

MR. FITZGERALD: The engine could be gone. Anything could

happen. Maybe that is all the value it has, but a quick inspection would

certainly clarify that very quickly.

Here again we would be paying taxes on the purchase price of

that particular item, but this government -

AN HON. MEMBER: Send it to an independent appraiser.

MR. FITZGERALD: An independent appraiser is what should

be done. The other part of it is that most people who go to Motor Registration

today, if they buy a vehicle then they go with an affidavit anyway, signed by a

Commissioner of Oaths or a Justice of the Peace. It is an oath. It is an

undertaking of an oath. It shows what that person paid for that particular

vehicle.

It is another example of putting the heavy hand on the

poorest in this Province in order to solve the economy. We are not dealing with

the people who drive the big Jaguars. We are not dealing with the people who

drive the big Cadillacs.

AN HON. MEMBER: The big, white one.

MR. FITZGERALD: The big, white Cadillacs. We are not

dealing with the people who drive Land Rovers or the big Chevy Blazers. We are

going out and saying to the people in this Province, because you cannot afford

to buy a new car then we don't trust what you are going to pay for the

second-hand car, so we are going to charge you what we feel is right because you

are ripping off the government. We can access more taxes and we can solve the

problems.

Mr. Speaker, I buy second-hand vehicles. I have not bought a

new vehicle for the last fifteen years; but I will tell you one thing, when I

buy it I pay the taxes on what I pay for it, and I feel most Newfoundlanders out

there do exactly the same thing.

AN HON. MEMBER: Roger, tell us the truth (inaudible).

MR. FITZGERALD: That is the truth, I say to the Minister

of Municipal and Provincial Affairs. That is the truth. When I buy something it

is around the $10,000 mark, and I pay taxes on exactly that, and I think most

people out there today do that. They are honest people. The people I talk with

are honest people. The reason they buy second-hand vehicles is because they

cannot afford to buy a new vehicle. They cannot go out and put themselves in

hock for $20,000 or $30,000.

Where we can be making money, and I will repeat this again,

is we should be charging a higher percentage of taxes on vehicles that are over

a certain price, on clothes that are over a certain price.

MR. SPEAKER: Order, please!

The hon. member's time is up.

MR. FITZGERALD: By leave for a second?

MR. SPEAKER: Does the hon. member have leave?

No leave.

MR. FITZGERALD: Mr. Speaker, that is where we can be

making our money, not dealing with the poor and downtrodden -

MR. SPEAKER: No leave.

MR. FITZGERALD: Thank you, Mr. Speaker. I will stand

again.

Orders of the Day

MR. SPEAKER: The hon. the Government House Leader.

MR. TULK: Mr. Speaker, I would move Motion 1 - I want to

do some first readings - 2, 3 and 4.

Motion, the hon. the Minister of Justice to introduce a bill,

"An Act To Amend The Public Utilities Act," carried. (Bill No. 44)

On motion, Bill No. 44 read a first time, ordered read a

second time on tomorrow.

Motion, the hon. the Minister of Environment and Labour to

introduce bills, "An Act To Amend The Shops' Closing Act (No. 2)," carried.

(Bill No. 48)

A bill, "An Act To Amend The Environmental Assessment Act,"

carried. (Bill No. 49)

A bill, "An Act To Amend The Workers' Compensation Act,"

carried. (Bill No. 50)

On motion, Bill Nos. 48, 49 and 50 read a first time, ordered

read a second time on tomorrow.

MR. SPEAKER: The hon. the Government House Leader.

MR. TULK: Mr. Speaker, I am going to ask leave to do this

and I understand I have it. The Member for Conception Bay South was originally

to serve on the House of Assembly Select Committee on, `Arming the RNC' but

because of personal circumstances I understand he wishes to be replaced by the

Member for St. John's West and, Mr. Speaker, I would so move that that occur.

Mr. Speaker, Order No. 20, Bill No. 26 and I understand that

in the absence of the Minister of Finance, the Minister of Education is going to

introduce this bill, "An Act To Amend The Public Service Pensions Act, 1991."

Motion, second reading of a bill, "An Act To Amend The Public

Service Pensions Act, 1991." (Bill No. 26)

MR. SPEAKER: The hon. the Minister of Education.

MR. GRIMES: Thank you, Mr. Speaker.

Just a few comments with respect to Bill 26, "An Act To Amend

The Public Service Pensions Act, 1991," on behalf of my colleague the Minister

of Finance. Members of the House of Assembly, Mr. Speaker, would recall that

last spring, during the Budget process, there was an opportunity made available

to workers with many years of experience who were close to retirement but not

eligible for full retirement, to exercise an early retirement option under the

Public Service Pension Plan. One of the things that was incorporated to try and

make it as attractive as possible to potential early retirees, Mr. Speaker, was

the fact that, rather than take an actuarially reduced pension, which they would

have to do under the plan as it is written today, that they would be given an

option to pay a lump sum into the pension plan, so that their pension would not

be actuarially reduced, therefore more of them might choose the early retirement

option.

In fact, Mr. Speaker, somewhere around 300 or so long-serving

employees of the government chose to exercise that particular option and what

Bill 26 does, Mr. Speaker, is bring forward the necessary legislation to give

legal status to the payments that these people have made so that their pensions

into the future can proceed without actuary reduction and can be paid in an

unreduced fashion for the length of their retirement. So this is retroactive in

effect, Mr. Speaker, and covers the group of employees who retired under the

early retirement option between the end of February and the end of March in

1997. So that was the issue that was addressed and this is the bill that gives a

legal standing to that option exercised by those workers.

MR. SPEAKER: The hon. the Opposition House Leader.

MR. H. HODDER: Thank you, Mr. Speaker.

We on this side of the House have no great objections to the

intent of this particular piece of legislation, it certainly is self-explanatory

however, we want to just draw the minister's attention to the consequences when

you set out to force 300 or so people out of the public service.

Many of them have been forced out long before they would

otherwise have left, and we know what happened in the last numbers of years

starting with the administration that the minister just spoke, the Minister of

Education was part of, when there was this December syndrome when, come around

December, the Wells Administration says: Now, what can we present to the civil

servants, and what can we give them for Christmas? and so they said: We will

present them with an opportunity to be booted out the door and so, every year,

200 and 300 people were told: we do not need you anymore because you are

redundant and if you do not leave now, you are in danger of losing your

severance, losing your benefit package and this whole policy that we had over

numbers of years is exactly some of the things that I want to bring to the

minister's attention, and so last year, we know that 300 or so people were told

that we are going to downsize the civil service, we want to make it somewhat

attractive to you and we want you to know that if you pay into your pension plan

and pay up the premiums that you would have paid if you had worked over those

next two years or twelve months or whatever the numbers of weeks, months or

years that were involved, if you pay those premiums then you will be able to go

and leave and in the long run, you will not be compromising your long-term

benefits.

Many of these people looked at what was happening, they knew

that there was some pressure being put on them; they were told that the

government was downsizing, they had internal pressure in some cases being put on

by their fellow-workers because that is a reality. That is a reality when you

get to be after numbers of years and we know that the government set aside - I

think the total amount of money was around $10 million - was set aside at that

time as an enticement to say to them: we want you to take the early retirement

package and so we say to the minister, that in the first round or so, there were

hardly any takers whatsoever. There was hardly anybody at all who said: I want

to be part of that kind of an option, because those people who were let go last

year, most of them would have preferred to stay on, to continue their employment

with the government and to retire at a time and at an age when they chose,

however, that was not they case and while the minister might stand here today

and present this piece of legislation, retroactive legislation to make law,

which is something that already existed and we tend to say: yes, we agree with

doing this retroactively because it is a person, it is a people issue. It is

giving some sense of compassion, some sense of understanding, it is ratifying

that which should have been done in the first place and we say: that is

reasonable, that is fair and that is logical; however because it is a people

issue. It is giving some sense of compassion, some sense of understanding.

However, the real problem here is when the government takes a

deliberate policy of an early retirement and then puts the word option to it,

and the word option is not the operative word here. Because many people in the

civil service found themselves being forced out the door. They weren't told in

direct language, but the government had various strategies to do indirectly that

which it wanted to do directly but wasn't forthright and forward enough to do

it.

We say to government there are several words here that are

wrong. One is the word voluntary. That is a wrong word here, because this was

not a voluntary retirement program. Neither was this an early retirement option,

because many people felt pressure. What we are doing now today is we are

ratifying the fact that those employees will be able to pay their pension

benefits for the next two years, one year, six months, whatever it might be, so

that in the long run they wouldn't be compromising their long-term benefits.

We say to government again, we are pleased this year, at

least it seems to have woken up a little bit. It has told people: No, we aren't

going to go and force you out this year, we are going to be merciful. It is time

it took a strategy like that.

We say to the minister here that the reality is many of those

people who left early are very concerned about their long-term retirement

benefits. They are concerned because they are looking at their years, they are

looking at their expectations. They know that government pensions have been

frozen since 1989. The last time anybody in this Province who retired on a

public service pension had an increase was in 1989. Now we are into the eighth

year since there was any kind of an adjustment. There is no indexing in the

provincial public pension funds, as the minister knows, and it has been talked

about for some time.

Many people are very concerned. In some cases the only way

some of these people could take this option was that they had to compromise

their severance package. They didn't have the money to be able to go and put the

extra money up front. We would like to be able to find out how many of those

people who left compromised their severance package in order to achieve the

long-term benefits here. Because as I said to the minister on Friday, many

people in this Province, including teachers, including those people who are

covered under the Public Service Pensions Act, 1991, many of them have great

concerns about their ability to be able to provide for themselves and their

families in their retirement years. While it might be an option to have people

retiring at fifty-five years or sixty years old, the latest research shows that

that might not be such a wise idea. Because when you have pensions that are

frozen, and when you have a history of eight years and no increase, with no

indexing, every single year that people are dependent on their retirement

pension they have to buy more with fewer dollars.

In particular since 1989 this government, of which the

minister was a member of the Wells government, has taken money from retirees.

For example, when you increase the provincial portion of the income tax act to

bring it up equal to, I think it was, 60 per cent to 68 per cent or 69 per cent.

What that means is that the people who retired in 1989 are now paying more

income tax because they are paying a higher proportion to the Province. So not

only are the people who are retiring on pensions not getting an increase; in

fact, they are getting a decrease, because the taxes have gone up, not to say

any of the hidden taxes from registering a motor vehicle to enjoying a

provincial park to, shall we say, buying goods and services. There have been a

tremendous number of increases for these people. So, I say to the minister, he

should be looking more carefully at what he is going to be saying to the

retirees of the public services. It will not matter whether they are retirees in

any aspect of the public service, because there is great anxiety.

I mentioned to him on Friday about teachers. When you have

teachers coming to you - I just mention this because it is still connected with

pensions - and saying, `I do not want to leave' - I know of one instance, in

fact, the gentleman is in the member's district. I taught the gentleman in Grade

XI in Botwood in 1961 or 1962, and he is now retired as a teacher. He went back

in September for fifteen days, I think it was, or twenty days. He went back only

because he had to fulfil his contract to be able to be eligible for the

teacher's severance package, and to be eligible for his pension. That kind of

uncertainty is all-pervasive in the civil service and many civil servants, when

they are given a choice, they are told by the ministry and by the government: If

you leave today, here are the options.

Last Thursday evening I went to a retirement party for one of

the teachers who taught with me. In fact, when I was doing my student teaching

at Booth Memorial back in 1961, he was in Grade X. This gentleman now has

finished his career and finds himself, just a few days ago, having to make a

choice.

AN HON. MEMBER: (Inaudible).

MR. H. HODDER: Yes, I say to the Member for Port au Port,

I did my student teaching at Booth Memorial in February of 1961, the same year,

I do believe, that you began your teacher training as well. It is a long time

ago. Some of the people I taught in the school system are now retiring. Why are

they retiring? Not because Bob Elliott or Roy Anthony, or some of those people I

have known for many, many years want to retire, but because, in these particular

cases, they are not given any comfort by this government. If they knew that the

packages they would like to have in place would be there at the end of the

school year, they would stay, but there is no comfort from the minister, there

is no guarantee that their severance would be there, and no guarantee that their

pensions would be there in the way they are now.

They contact their Member in the House of Assembly, they

contact the Department of Education, the NLTA, their public service sector

union, NAPE or CUPE or whatever it might be, and they are not given any comfort,

because the government will not give these agencies any leverage to say: We will

give you a reasonable guarantee that your severance and your package will be

there at the end of the school year or, in some cases with the civil servants,

at the end of the, shall we say, time they reach the usual retirement age. So

people are leaving, and we should not be surprised at that.

What we say to the minister is: Yes, this makes some sense

here; however, it is regrettable that we have people out there having to make

those decisions at a time when they do not really want to make them. These are

the senior people in our professions, whether they be in teaching or whether

they work in the Department of Finance, or wherever they are in the public

service; they are all public servants. Forcing people out unreasonably is

unfair, it is unjust, and in some cases, most people would say, it is also very

unwise.

Mr. Speaker, we ask the minister for fairness, ask him to -

AN HON. MEMBER: Fairness.

MR. H. HODDER: Well, they were elected on the basis of

`fairness and balance'. Those was the buzzwords when Clyde Wells was here. Now

it is all: `better tomorrow'. The buzzwords now are `better tomorrow'. All of

these people in the current Administration, they are the `better tomorrow' boys

and girls. This is the theme over here, you see? This is the `better tomorrow'

bunch. The ringleader of the `better tomorrow' group is the Minister of

Education. He sits here today to justify, to try to pilot this amendment to the

Public Service Pension Act, 1991, through the Legislature.

It comes about because last year his government, the `better

tomorrow' bunch, said: We want to make your `better tomorrow' a little better.

Not (inaudible) guaranteed, but we are going to tell you if you don't leave now,

then we are going to force you out the door. To be nice to you we are going to

let you - how kind they are - buy your future pension benefits. They are going

to pass around the collection plate kind of thing, you know, and say: Here, we

will take your money in advance so that you can get some future benefits. At

least you will not be terribly disadvantaged by this early retirement option.

I say to the minister two things. They call this a voluntary

retirement program. It was not voluntary. Workers were being forced out the

door. They use words like `early retirement option'. For many people it was no

option whatsoever. However, we support the retroactive legislative arrangement

to let these people be able to pay their premiums over the balance of their time

they would ordinarily have worked to reach the retirement years. Because, given

the circumstances they have been faced with, that certainly is probably the very

least we could do for them.

MR. SPEAKER: If the hon. the Minister speaks now he will

close the debate.

The hon. the Minister of Education.

MR. GRIMES: Thank you, Mr. Speaker.

I appreciate the comments made by the hon. the Member for

Waterford Valley. He made a good speech, but unfortunately, he is dead wrong.

Other than that, everything was fine. I appreciate the reminders in the history

lesson. I had forgotten most of that stuff he talked about because I wanted to

forget it, I guess, some of those things back in 1989 and 1990 and those kinds

of things.

In fact, just so the record is clear, the option we are

discussing here in Bill 26 as I move second reading, the voluntary retirement

program, was exactly that, despite what the hon. member described it as. Because

in fact the unions came to the Minister of Finance and Treasury Board and said:

We understand there is going to be some downsizing in government, there are

going to be some positions become redundant, and we would like for you to at

least present an option so that some senior people who are close to retirement

might exercise the option and leave, rather than you just lay off the younger

workers. It was at the urging of the public service unions that this voluntary

retirement option was put in place by the government. Of course, now this

particular bill gives effect to it and legalizes, in fact, the option that was

exercised by some 300 or so workers last year.

At another point, I look forward to engaging in a further

discussion about the merits of the pension plan, the indexing issue, which is

critically important, by the way. There is a history of that with the public

service unions, with the teachers' pension plan, and others that I am sure we

will get a chance to debate in this Legislature - a critically important point.

What I think here, as well, is everybody recognizes the economic benefit of

having 300 or so people who are now out on a pension, not reduced, and also 300

people still working in the public service who otherwise may have been laid off.

I am delighted to hear of the support of the Opposition with respect to Bill 26,

and pleased to move second reading of the bill.

On motion, a bill, "An Act To Amend The Public Service

Pensions Act, 1991," read a second time, ordered referred to a Committee of the

Whole House on tomorrow. (Bill No. 26)

MR. SPEAKER: The hon. the Minister of Justice.

MR. DECKER: Order No. 22, Mr. Speaker, "An Act To Amend

The Judicature Act And The Unified Family Court Act."

Motion, second reading of a bill, "An Act To Amend The

Judicature Act And The Unified Family Court Act". (Bill No. 45)

MR. SPEAKER: The hon. the Minister of Justice.

MR. DECKER: Mr. Speaker, this bill would amend The

Judicature Act and The Unified Family Court Act to reflect an increase in the

judicial complement of the Supreme Court of Newfoundland from nineteen to twenty

judges, with an additional judge to be assigned to the Unified Family Court. We

have been advised by the Chief Justice that the workload of the Unified Family

Court has doubled since 1985; therefore, we feel that it is important that we

have another judge appointed.

The Federal Government, as hon. members know, pay the salary

of Supreme Court judges, and alternately, the Federal Government will make that

appointment. In order for us to accept an additional judge, Mr. Speaker, we had

to change the legislation so that we can make provision for twenty instead of

nineteen.

The bill would further create an expanded service area for

the Unified Family Court and all matters commenced in the Supreme Court Trial

Division, originated from this area, would be heard by the Unified Family Court

in St. John's or on circuit. Now, the expanded service area of the court will

comprise the Avalon and Bonavista Peninsulas but this bill would not detract

from the jurisdiction of Provincial Court in the expanded service area. So

people living out in Clarenville and Bonavista can still continue to use the

services of the Provincial Court, Mr. Speaker.

Thank you.

MR. SPEAKER: The hon. the Member for St. John's East.

MR. OTTENHEIMER: Thank you, Mr. Speaker.

Just a few words on Bill 45, which is relatively

straightforward, in that it - as the Minister of Justice indicated - creates in

fact an additional judge, a Supreme Court Judge, presumably a Unified Family

Court Judge, to deal with the second feature of the bill, which is the expanded

area.

The question that comes to my mind, though, and it is an

area, I guess, that the minister will have to give some attention to, if in

fact, Mr. Speaker, we have an enlarged area, there is more than just a judge

that will be required. I am thinking, for example, of the variety of positions

and jobs that are associated with the Unified Family Court. I am thinking, in

particular, of the social arm of the Court with an expanded area and with the

addition now of one judge, that will necessitate, in my view, Mr. Speaker, the

requirement for a greater number of social workers, counsellors or mediators,

for example, those types of individuals who play an integral part and a very

important

part in the day-to-day functions of Unified Family Court. So it is

important, I think, to remember - and, as I have indicated, hopefully, the

minister will address this fact - that with expansion in one area, namely,

jurisdiction, and the fact that an extra judge will be available, we must also

keep in mind the very essential roles of other individuals who play a very

important

part in the family law process, again, individuals such as counsellors

and mediators.

It is interesting to note, Mr. Speaker, that the Unified

Family Court has exclusive jurisdiction under a number of areas. I would just

like to refer to them very briefly, and these are found under

Section 6 of the

legislation. It deals with formation of marriage; dissolution and annulment of

marriage; judicial separation and separation orders; actions and causes

concerning matrimonial property, including injunctions, partition and

settlements; the restitution of conjugal rights; relief for family dependants on

death; declarations of status, including the validity of marriage, legitimacy

and legitimization; alimony and maintenance, including protection orders for

deserted spouses; maintenance of children, including affiliation proceedings and

aggrievance; enforcement of alimony and maintenance orders, including reciprocal

enforcements of these orders; custody and access; adoption; charges or

proceedings under the Criminal Code or a Statute of the Province relating to

non-support or inter-spousal assaults, to school attendants and to neglected

children; charges or proceedings under

Section 810 of the Criminal Code, that

are between spouses, inter-spousal and familial torts and those other matters

that are provided by or under

an Act to be within the jurisdiction of the

Unified Family Court. So, we can see that the jurisdiction of this court is

all-inclusive and there is very little, from a legal point of view, that is not

part and parcel of the jurisdiction of the Unified Family Court, as is indicated

under

Section 6.

So, I say to the minister, in response to just a few comments

on Bill No. 45, if in fact the Federal Government is going to fund the provision

of an extra judge, and if in fact the jurisdiction of this court is going to be

expanded so that many more Newfoundlanders can avail of the services which a

Unified Family Court provides, it is essential that the Provincial Government

ensure that the support services and the support staff are available. Because,

not to do that, does very little in assisting the present circumstances. If we

expand the jurisdiction, clearly, we are opening the doors to have more

litigants in this court. Therefore, it is essential that the support staff and

the personnel be put in place to assist a new judge in carrying out his or her

responsibilities as a Justice of the Unified Family Court.

Thank you, Mr. Speaker.

MR. SPEAKER: If the hon. the Minister of Justice speaks

now he will close the debate.

The hon. the Minister of Justice.

MR. DECKER: I thank the hon. member for his remarks, Mr.

Speaker.

Of course, the support staff are the responsibility of the

Province. We do have support staff now in the Unified Family Court and we

certainly are cognizant of our responsibilities in that matter and we will find

a way to make sure that support staff is there. As the member points out, I am

sure he is aware that the Unified Family Court is really a part of the Supreme

Court and matters like divorce and property rights can only be handled by the

Supreme Court anyway - the Provincial Court is not able to do that and, of

course, we recognize that.

We did look at the possibility of expanding the Unified

Family Court to include the West Coast and Labrador. However, after discussions

with the Chief Justice, the workload is just not there. It would not be very

productive to put the additional judge for Corner Brook or for Central

Newfoundland, the workload is just not there, Mr. Speaker. So, the Supreme Court

on circuit - or in the case of Gander, Grand Falls, Corner Brook or whatever the

case might be - will continue to deal with divorce and property matters and

other matters that the Unified Family Court deal with.

Therefore Mr. Speaker, I move second reading.

On motion, a Bill, "An Act To Amend The Judicature Act And

The Unified Family Court Act," read a second time, ordered referred to a

Committee of the Whole House on tomorrow.

MR. SPEAKER: The hon. the Government House Leader.

MR. TULK: Bill No. 46, Order No. 23.

Motion, second reading of a bill, "An Act To Amend The

Judgement Enforcement Act" (Bill No. 46).

MR. SPEAKER: The hon. the Minister of Justice.

MR. DECKER: Mr. Speaker, I am not sure who it was who

said that, `No person's property is safe while the Legislature is in session.' I

think it - was it Jefferson who said it, `Nobody's property is safe while the

Legislature is in session.' Anyway, I believe what we have here is an example

of, when the Legislature is in session, doing something which the Legislature

really did not intend to do.

Remember the Judgement Enforcement Act, Mr. Speaker, which we

put through this House last year. The Judgement Enforcement Act is a very

technical piece of legislation which was worked on right from the time when the

half-brother of the critic for Justice was the Minister of Justice, so it has

been around for a long, long time.

It was finally completed last year, bearing my signature -

bearing the signature of one who probably knew less about it than anybody else

since the time when Gerry Ottenheimer was minister. Anyway, it went through the

House, and here is what we did. There was an error. The error was caused when

Section 23 of that Act repealed

Section 10 of the Registration of Deeds Act.

Instead of simply amending it, they repealed it. It should have been amended to

reflect the operation of the judgement enforcement system created under the

Judgement Enforcement Act. This is a bit of housekeeping to correct something

that we did, that we did not intend to do, Mr. Speaker. So maybe we should not

be opening this House as much as we do anyway, because the Lord only knows what

else we are going to spoil if we keep the House open too long.

MR. SPEAKER: The hon. the Member for St. John's East.

MR. OTTENHEIMER: Thank you, Mr. Speaker.

I am inclined, Mr. Speaker, to criticize however,

unfortunately I was on the very committee that allowed that

section to proceed.

On May 20, 1997, Mr. Speaker, the House passed

an Act to

amend the Judgement Enforcement Act, but the bill, as the minister has correctly

indicated, had an error in it. It wrongly repealed

Section 10 or the

Registration of Deeds Act. This bill simply retroactively amends the previous

bill to add a new

Section 10 to the Registration of Deeds Act to replace the

section that was repealed. It is, as the minister indicates, just a housekeeping

change and no further comment is really necessary, Mr. Speaker.

MR. SPEAKER: If the hon. the Minister speaks now he will

close the debate.

The hon. the Minister of Justice.

MR. DECKER: With a red face, Mr. Speaker, I move second

reading.

On motion, a bill, "An Act To Amend The Judgement Enforcement

Act", read a second time, ordered referred to a Committee of the Whole House on

tomorrow. (Bill No. 46).

MR. TULK: The hon. the Government House Leader.

MR. TULK: Mr. Speaker, Bill 47, "An Act To Amend The

Provincial Court Act, 1991".

Motion, second reading of bill, "An Act To Amend The

Provincial Court Act, 1991" (Bill No. 47).

MR. SPEAKER: The hon. the Minister of Justice.

MR. DECKER: Mr. Speaker, this bill would amend the

Provincial Court Act, 1991 to provide for a Standing Tribunal to be appointed

for a four-year term, to review and report on salaries and benefits of the

judges of the court.

Honourable members will probably be aware that there was a

recent decision of the Supreme Court of Canada dealing with action that was

started in Manitoba, which dealt with the way that judges of the Provincial

Court were paid, and as a result of that judgement by the Supreme Court, that

ruling by the Supreme Court, we have come to the conclusion that we should have

a Standing Tribunal, Mr. Speaker.

Right now, in order for us to deal with judges' salaries, we

have to appoint a tribunal - I think it is every four or five years the House

appoints a tribunal. After the tribunal makes its report, the House deals with

it and then the tribunal is disbanded. According to the most recent ruling of

the Supreme Court, it seems that it will be necessary for us to have a standing

committee in place at all times, so this bill will change the Provincial Court

Act, so that we could make provision for a tribunal which can be in session at

all times, Mr. Speaker. The bill would also provide that the Minister of Justice

may refer a matter respecting the salaries and benefits of judges to the

tribunal at any time.

When this case was tried in the Supreme Court, the minister

in Manitoba was severely criticized because it was said he was accused of

negotiating with judges. This, in the opinion of the Supreme Court, was contrary

to the independence of the Judiciary, therefore the Supreme Court said that it

was completely improper for any Minister of Justice to negotiate with Judges of

the Provincial Court, Mr. Speaker.

Now, we recognize that and this government, Mr. Speaker, has

no intention whatsoever, of ever interfering with the independence of the

Judiciary. If we were doing anything inadvertently, which would, in any way,

give any suggestion that we were interfering with their independence, we want to

make sure that, that would be corrected as fast and as quickly as possible.

Mr. Speaker, I should tell you that in some other provinces

where this issue has come up, where especially it is around the independence of

the judiciary but usually relates to the way judges are paid - and there have

been examples across the country where defence lawyers acting for people accused

under the Criminal Code have put forward the argument that their clients could

not receive a fair judgement, a fair hearing, because the judge who was acting

in the case was not really independent, since his salary was controlled by

government, whoever the government happened to be at the time. Therefore, it was

suggested that there had to be some process put in place whereby the whole thing

could be arm's length, would be independent of government, and the judiciary

should maintain its independence.

I should also point out that, from a layman's perspective,

the ruling is somewhat - what is the word I should say - it is a funny kind of

ruling. For example, Ministers of Justice are forbidden from negotiating with

judges about their salary. Now that is the way it should be, and I have no

problem with that. However, according to the ruling, there is nothing which

would preclude judges from meeting with the minister to talk about their salary;

but the minister cannot talk to judges about their salary. Judges can talk to

ministers but ministers cannot talk to judges. That is technically what it is;

so, therefore, I suppose what would happen if there was some matter or some

concern that judges would have, they would come and sit down with the Minister

of Justice. I don't know if we would probably arrange to have a zipper so that

the minister could zipper up his mouth and say nothing, and just sit and listen.

Maybe future Ministers of Justice will be equipped with a zipper for their

mouth, and that might not be a bad idea either.

Judges can come in, meet with the minister, express their

concerns about their salary, about their living conditions, about their extra

expenses for their gowns and what have you; however, the minister is not

allowed, in any way, to discuss the matter or negotiate with judges. And this

minister and this government have no desire, no intention, no wish, to ever in

any way interfere with the independence of the judiciary. Therefore, we are

putting this Standing Tribunal in place so that - on a go-forward basis, from

henceforth - whenever there is a desire to increase judges' salary, or to make

sure that judges are being treated fairly, then this tribunal will be put in

place. The minister will be able to refer matters to that tribunal at any time.

The bill also would repeal the current provision which

provides that where the tribunal's report is not dealt with within a time limit

set by the Act, the recommendations of the report come into force automatically.

Under the present Act, the tribunal is put in place; they go

out and report back after a month or two months, or whatever it takes, and the

report has to be tabled in the House. After it is tabled, the clock starts to

run, and if, at the end of thirty days - I think it is thirty days; I stand to

be corrected on that - no action is taken by the House, then all of the

recommendations of the report become binding upon government. This bill would

repeal that provision whereby if the report is not dealt with within a time

limit, it does not automatically come into force.

Finally, Mr. Speaker, the bill would also permit the House of

Assembly to reconsider the report that was previously dealt with on April 22,

Mr. Speaker, there has been some suggestion that the way this

House chose to deal with the Roberts' report was not in keeping with the most

recent ruling of the Supreme Court of Canada. Therefore, to make sure, to make

absolutely certain, that there is no perception whatsoever that this House or

this government in any way wants to interfere with the independence of the

judiciary, this House is going to be asked to reconsider the report which was

dealt with on April 22, 1997.

These are the amendments which I am bringing forward, and I

would ask hon. members to deal with them in the appropriate manner so that we

can get on to make sure that if there happens to be any perception that in any

way, shape or form, the government of the day is interfering with the

independence of the judiciary, then that would be corrected at once; because I

cannot say too many times, and I cannot say too plainly, that it is not the

intention or the desire of this Administration, and I would think also of this

House of Assembly, to in any way interfere with the independence of our

judiciary.

Thank you, Mr. Speaker.

MR. SPEAKER (M. Penney): The hon. the Member for Signal

Hill - Quidi Vidi.

MR. HARRIS: Thank you, Mr. Speaker.

I rise to speak on the bill introduced by the minister for

second reading, Bill 47, "An Act To Amend The Provincial Court Act, 1991."

It is a bill which I find quite astounding to have to deal

with in this House, six months after we had a resolution in a speech from the

minister where the concept of the independence of the judiciary seemed to be

unknown to him. When two speakers on this side of the House, including myself,

pointed out to him that that was the reason his resolution was being opposed, to

amend the recommendations of the last tribunal, the Roberts Tribunal; when it

was pointed out to him that his decision to refer the recommendations back to

himself and the judges was in fact totally contradictory to the whole purpose

and the provisions of the Provincial Court Act, 1991, he treated that with a

flippant remark, and took the comments as nothing more than the suggestions of

two lawyers who were looking towards their own future.

The minister has now discovered the independence of the

judiciary. The question is why. The reason he has discovered the independence of

the judiciary is because he is now being sued by the Provincial Court judges,

who have detailed and outlined in their lawsuit -

MR. TULK: (Inaudible).

MR. HARRIS: Big deal, says the Government House Leader.

Big deal we are being sued. They do not mind being sued. We are sued all the

time, they say. Right? Trans City, Frank Ryan, the Murray Premises, Holiday Inn.

Did they win Holiday Inn? They lost Holiday Inn - Trans City, Murray Premises.

Mr. Speaker, the track record is not good.

The Minister of Justice has now discovered - because he is

being sued by the judges. The Provincial Court judges are now suing the minister

on the basis that his actions in the House last spring were unconstitutional.

Because they recognized that what was going on by this government with this

legislation, not just last spring but going back to the first introduction of

the Act, has all been unconstitutional.

This legislation itself that we are now being asked to pass

at second reading, I would submit itself is going to receive the same fate as

the resolution that was brought to the House last spring, that it, too, will not

pass muster. What the government is trying to do is trying to defeat the court

case by legislation in the House. It is trying to defeat the court case by this

legislation, by taking away the legislation that in fact caused the tribunal to

have its report in the first place.

All of this is a part of the failure by this government and

the previous government to abide by its own recommendations, by its own

legislation. This bill was passed in 1991. The purpose -

AN HON. MEMBER: (Inaudible).

MR. HARRIS: Mr. Speaker, I wonder if I could have some

order? It is distracting to hear him. Mr. Speaker, could I have some order?

MR. SPEAKER: Order, please!

MR. HARRIS: Mr. Speaker, this is a serious matter because

it involves questions as to whether or not this government and this Legislature

is acting in an unconstitutional manner. Now, Mr. Speaker, that may be

inconsequential to some people but I take the Constitution obligations of this

Legislature and this government seriously and I - Mr. Speaker, could I have some

order, please?

AN HON. MEMBER: (Inaudible).

MR. SPEAKER: Order, please!

The hon. member has requested that he be heard in silence.

MR. HARRIS: Thank you, Mr. Speaker.

The legislation now before us is an amendment to the 1991

Provincial Court Act.

An act which has never been followed by this government,

from the day it was introduced, with respect to the establishment of a tribunal

to ensure the independence of the Provincial Court Judiciary. Mr. Speaker, the

idea behind the legislation - and the legislation itself is good - is that the

remuneration of provincial court judges be established independently by a body

independent of government, by a body independent of the Department of Justice,

wherein some 90-plus per cent of the cases before that provincial court are

brought by the government. The cases are brought by the government, brought by

the minister's department, brought by the minister's employees before those

judges for decisions. Over 90 per cent of them are brought by the government, by

the minister's department and the idea is, very simply, that the salaries of

those judges and the remuneration that they receive for their work should be

decided by some process independent of the normal kind of bargaining that goes

on with public servants.

That's the basic purpose of it, Mr. Speaker, there is no

magic about it. It's fairly fundamental but it is so fundamental as to be

recognized as a constitutional principle, Mr. Speaker, by a number of cases that

have gone before the courts and to the Supreme Court of Canada and is a very,

very important part of our Constitution that the judges be considered to be

independent of the government. That does not exist in many countries of the

world, Mr. Speaker. The judges do the bidding of the government. The judges will

hang the people that the government wants hanged. The judges will put in jail

the people that the government wants in jail. The judges will carry out the

wishes of the government. We have a system, Mr. Speaker, which does not believe

that the judges ought to be in a situation where they can be regarded as being

instruments of the state in the manner that the government has control over

their salaries, control over their remuneration.

So the idea behind this legislation, the 1991 act which is

now being amended, is a very positive one and an important constitutional

principle. Since it has been passed, Mr. Speaker, it has yet to be followed. The

first piece of work of the first tribunal, reported in 1992, by the time they

had it reported, Mr. Speaker, the government had introduced legislation which

purported to undo the consequences of the recommendation of this tribunal. The

tribunal reported, Mr. Speaker, it's recommendations were not implemented, and

the report was left to gather dust.

Four years later there was suppose to be another tribunal

appointed. It was suppose to be appointed on December 1, 1995. The government

failed to follow the legislation, failed to appoint a tribunal until, I believe,

it was October 21, 1996. That tribunal, called the Robert's Tribunal, after the

then Minister of Justices brother, I think, who was the chair of that tribunal,

made it's report - it's independent tribunal report on April 22, 1996. That

report was tabled in the House and was to become law, thirty days later by

operation of the act, except that on the thirtieth day the minister came in and

purported to bury the recommendations in a manner that is now being challenged

as unconstitutional and at the time the Member for St. John's East and this hon.

member, advised the minister that the legislation was flawed - the resolution

was flawed and that he could expect that the judicial council or the judges

themselves would seek legal advice and probably take action against it.

That is exactly what has happened because the whole purpose

of the legislation has been thwarted on two occasions, at least, by the

government because they did not wish to follow the recommendations of the

committee. The other alternative to following the recommendations of a committee

or making variations, which they are permitted to do in this House, is to engage

in negotiations and it has been ruled that that type of requirement, by

requiring the judges to engage in negotiations what you are doing is, in fact,

putting the judges in a position where their independence can be questioned.

Now, Mr. Speaker, the legislation itself - I do not think the

legislation is going to work, so it is very difficult to support the legislation

in principle or even to criticize the particulars of it. What it does is try to

undo what the minister did last spring in having a resolution passed in the

House and it does it by creating a standing tribunal.

Now, a standing tribunal may not be a bad idea. It provides a

little bit more flexibility on both sides because aside from the tribunal

everything stays in place for four or five years and nothing can be changed in

the meantime regardless of what other changes might be taking place in the rest

of the public sector or in the judicial circles or in remunerations in general

or in pension policies throughout the general public sector. So, a standing

tribunal may not be a bad idea. What is does permit in the new legislation, is

it permits the minister at any time to refer a matter to the tribunal,

Section

28.1(1), 'The minister may at any time refer a matter respecting salaries or

benefits of judges to the tribunal for it's review and recommendation' and they

have six months to refer the matter back or make a report back to the minister

which then must be tabled in the House. It is somewhat one sided in that is does

not permit the provincial court judges, through their organization, to refer a

matter to the same tribunal for a recommendation. If this is going to be a

process that is going to stand as a standing tribunal to deal with matters that

might come up from time to time, then surely, in order to be fair, the judges

should also have the right to refer matters to this tribunal for

recommendations.

Aside from the general problem with the legislation, in that

it tries to undo a court case presently before the courts, wherein the

minister's decisions and the House's decisions have been challenged on a

constitutional basis, in a case that appears at first glance that the minister

is sure to lose, aside from the fundamental problem with the legislation of

that, there are individual unfairness aspects, even if it turns out that the

legislation is ruled as being valid by the courts. Even if it turns out that

today's legislation is ruled valid by the courts, there is unfairness in it that

ought to be corrected and that both the minister and the judges' organization

should be permitted to make references to the tribunal for review and

recommendation of the committee.

The other

section of the act which appears to try to set out

some sort of a bargaining relationship at arm's length through this council

provides for the appointment of three persons - one of whom is a nominee of the

Chief Judge and other judges of the court, and the other two are appointed by

the Cabinet - it appears that we have a sort of two to one: two people appointed

by the Cabinet and one appointed by the Chief Judge and the other judges of the

court.

It would be fairer if the Lieutenant-Governor in Council and

the judges - the Chief Judge and other judges - appointed a member each, and the

two of them selected a Chair, an independent, third-party Chair. That would be a

fairer method of dealing with this matter.

The third difficulty with the legislation is that it gives an

undue amount of time to deal with the report once it is made. They have fifteen

days after a House is in session, or fifteen days after the report to submit it

to the House. So they have fifteen days to consider it before they are even

obliged to send it to the House. Then they are seeking another thirty days to

deal with it. Plus, if the House happens to prorogue during that thirty days

they want to start the process all over again some several months later perhaps,

or potentially several months later, when the House resumes for the next

session. So it is an undue period of time to deal with the report and

recommendation.

The third difficulty, and I don't know why this is here, they

are asking that the next report - the first report from this committee - must

happen by April 22 in the year 2002. Is this intended, that the committee not

deal expeditiously with the matters that were up in the air with respect to the

salary and benefits of the judges? Why would the first report be submitted to

the minister no later than April 22, 2002 - or 2001 rather? Does He not intend

to refer the last report to this committee?

Does he not intend to refer the Roberts report to this

committee? Looking at 28.3(2) it says: "Notwithstanding subsections 28.2(2),

(3) and (4), the House of Assembly, on the motion of the minister, may reconsider

the report previously submitted and dealt with by the House of Assembly on April

22, 1997 and may accept, reject or vary the report as if it had not been

previously dealt with."

He is trying to undo, Mr. Speaker, what was done improperly

last year. Is he going to do that on his own, or is he going to re-submit it to

this new committee? What is the intention? How does he plan to deal with the

fact that the Roberts committee report was made almost a year after it should

have been made? That tribunal was supposed to have been struck on December 1,

1995 and would then have been required to report six months later, by June 1,

1996. How does he intend to make up for that lost year in having recommendations

come before the House of Assembly? Is he now writing into this legislation the

error that had been committed back in 1995 by his predecessor in failing to

appoint a tribunal?

I suspect that like the resolution passed in April 1997, this

legislation is not going to survive a challenge in the courts. Why doesn't the

minister resolve this outstanding court case with the Provincial Court judges

and put into place legislation? If he was putting in legislation such as this

with some amendments, with some changes, after the court case had been resolved

to the satisfaction of the parties, then I think it would receive the support of

both sides of the House.

What he is doing here is trying to sidestep the court case. I

believe the consequences of what he is doing are only going to be to compound

the errors and leave the matter to be resolved by the court, instead of dealing

with the problems he has caused and exacerbated by failing to recognize from the

very beginning that the legislation itself, the 1991 act, embodies the correct

principles of the independence of the judiciary. Instead of following his own

legislation, he has embarked on a course of action which is going to see this

government embarrassed once again by a ruling of the court that its actions are

inconsistent with the Constitution of this country. Like it had happen last

summer when it was brought to court by representatives of the school boards and

denominations, when legislation passed in this House fails to meet the

requirements of the Constitution.

I would suggest that before passing this legislation he

consult very closely with legal counsel on behalf of the Provincial Court judges

and resolve that case that is presently before the courts before passing this

legislation for third reading. In principle, he is seeking to, in the course of

legislation that is now before the courts, affect the outcome of the case by

changing the legislation. I think that is an inappropriate use of the

Legislature. It is something that ought not to be contemplated except in very

exceptional circumstances where it is clear that the only way to achieve justice

is to do so. This is not such a case, Mr. Speaker, this is a case where the

government has clearly been acting in a way inconsistent with the legislation,

inconsistent with the constitutional principles that are embodied in that. They

should clean up their act, Mr. Speaker, before bringing in legislation in this

House to have a long-term solution to the problem.

Thank you, Mr. Speaker.

MR. SPEAKER (M. Penney): The hon. the Member for St.

John's East.

MR. OTTENHEIMER: Thank you, Mr. Speaker.

Mr. Speaker, I would like to speak for a few minutes on Bill

47, "An Act To Amend The Provincial Court Act, 1991" and many of the points that

were expressed by the Member for Signal Hill - Quidi Vidi, I share.

He has indicated some of the concerns; perhaps the most

important issue is not specific to this legislation but is specific to the

reference which was alluded to by the previous speaker and that is, we have a

somewhat unusual circumstance presently before our courts where, the Provincial

Court Judges have seen fit to commence an action against the Attorney General,

and I say, Mr. Speaker, that that is an unfortunate set of circumstances, it is

disruptive, it is unsettling and it need not be.

I would think that, the minister in his department would work

diligently to effect a resolution to this dispute as quickly as possible. Judges

have a very important role in our society and it is, I am sure, a primary

concern of the minister that, the judges who are under the jurisdiction of the

Province and under his jurisdiction as minister and Attorney General, are in a

position that they can carry out their work effectively without the aggravation

- perhaps for want of a better word - of an outstanding civil action in which

all parties are now embroiled.

This legislation, Mr. Speaker, attempts in some respects to

circumvent I guess, previous attempts to reconcile outstanding issues between

our judges and the ministry, and what was found to be, in my view at least, very

reasonable recommendations in the report that was tabled in this House a number

of months ago unfortunately, was not found to be reasonable by the government

opposite and of course, we find ourselves in a situation today as I have just

indicated, that the parties are at odds with one another.

The overall concern I had, Mr. Speaker, with respect to this

specific bill, Bill 47, is, as quickly as government was not prepared to review

and consider and take into account the recommendations of the past report, what

guarantee do judges or indeed any party in our Province, where an independent

tribunal is appointed? What guarantee will future parties have that even a

recommendation out of this tribunal will be adhered to in the appropriate way?

So it seems to me that we are just going on and on, we are repeating mistake

after mistake, and the bill perhaps will do nothing to really remedy or conclude

or bring closure to what has been an outstanding issue for a significant period

of time.

In brief, Mr. Speaker, Bill 47 ensures that one member is a

nominee of the judges, it allows the Cabinet to fill vacancies, it allows the

minister to refer salary issues to the tribunal for recommendations; while the

House has thirty days to take action on the report once it is tabled, failure to

do so will no longer result in the recommendations being accepted by default.

The remuneration is no longer necessarily effective for four years since the

minister may now request an interim report, Mr. Speaker, on salary matters, and

take a vote in the House on actions in view of that report, and specifically,

the April 22, 1997 Report can be reconsidered as if it had never been dealt

with. Although it is clear what the legislation attempts to do, Mr. Speaker, it

does not give any security to our Provincial Court judges that this issue will

be resolved once and for all.

I see this legislation as just a further attempt to delay the

reality that this is an issue that the government must take seriously. The

government must strive to conclude this matter, bring closure to this

outstanding issue, as I've indicated earlier. There is no guarantee, there is no

protection, to our Provincial Court judges that Bill 47,

An Act To Amend The

Provincial Court Act, 1991, does that.

I have to share many of the concerns that have been expressed

by the previous speaker. There are too many questions which remain unanswered.

There is no guarantee that can be given to this House that this matter will be

concluded once and for all, once a tribunal makes a recommendation. We see that,

Mr. Speaker, in the way the previous report was somewhat summarily dismissed. I

do have some difficulty with the provisions that are being presented in Bill 47,

and I will look forward to speaking again during third reading.

MR. SPEAKER: If the hon. the Minister speaks now he will

close the debate.

The hon. the Minister of Justice and Attorney General.

MR. DECKER: I thank hon. members, Mr. Speaker, for their

input in the debate. However, the Member for Signal Hill - Quidi Vidi almost

speaks as if Newfoundland somehow was the only part of Canada which had a

problem with dealing with the way we pay our judges. The reality is every single

province in Canada had a process which is similar to our process. This House -

and I'm not saying government, I'm saying the House; the tribunal reported to

the House - the House acted in good faith. The House was of the opinion that the

House had the authority to deal with the tribunal report the way that it did

deal with the tribunal report.

There is no way under the sun the hon. Member for Signal Hill

- Quidi Vidi could have known six months ago that this act, that our process,

was wrong because there was no ruling from the Supreme Court of Canada. His

opinion was just another opinion, a voice crying in the wilderness. I took it in

the spirit that it was offered and didn't pay a whole lot of attention to it.

However, it turns out, I suppose if you say enough enough

times, eventually you are going to be right. The hon. member was right. I think

it was pure, sheer coincidence that he was right at that time. If it was not

coincidence, then maybe we should ask the Prime Minister, when he fills the

vacancy on the Supreme Court of Canada, that he should go no further than our

friend for Quidi Vidi and appoint him to the Supreme Court of Canada. Because he

is either clairvoyant or else he has wisdom which nobody in this Province has

been giving him any credit for.

The reality is every province in the country is concerned

about the independence of the judiciary. It is a difficult situation. The hon.

member across the way I'm sure will admit that when the government of the day

has to take action to freeze the salaries of civil servants, when the government

has to freeze the income for social services people, when the government has to

make cutbacks to health care, to education, when the government has to do all

that, it is extremely difficult for one group of people whose payment comes from

the public purse, even though they are independent, the money comes from the

same money that pays the welfare recipient up in Raleigh. The same government,

the same taxpayer, has to make the money available. Therefore, there has to be

some process in place whereby the government of the day, which has to freeze

payments to social services people, which has to freeze payments to the health

care sector, enables the government of the day to do that.

Now, the process which we had in place, the process which

Manitoba had in place, the process which Prince Edward Island, New Brunswick,

and British Columbia, all these processes, all the governments thought we were

acting in a way which was acceptable. However, the Supreme Court of Canada has

pointed out that that is not the case. Therefore what we have to do is put a

process in place to correct our process so that we will not in any way, either

actually or in perception, be able to be accused of interfering with the

independence of the judiciary.

As soon as it was brought to our attention that our process

would not withstand a challenge in the Supreme Court of Canada very similar to

the one which has just gone through from Manitoba, not exactly the same but very

similar.

As soon as it came to our attention, Mr. Speaker, that this

process would not survive a challenge we rushed this legislation to this House

so that we could correct it, so that once this legislation goes through this

House we will have put in place legislation which will survive an appeal through

the Supreme Court because we have a precedent. From this day forward or the day

that this legislation goes through third reading and receives royal assent,

nobody in this country will ever again be able to say with any degree of

confidence that this government and this House is doing anything which is in

anyway interfering with the independence of the judiciary. That, Mr. Speaker, in

a nutshell is where we are. We are not the only Province, we are not unique.

Other provinces have had the same problem. Indeed, the test case to the Supreme

Court was put there by Manitoba and Prince Edward Island, Mr. Speaker, had a

similar case.

Every province had to deal with the issue of: How do you deal

with the independence of a judiciary? How do you pay your judges? How do you

give them increases in pay when you are cutting back on the civil servants, when

you are cutting back on every other person who receives his or her pay from the

public purse? That is all it is about. We thought the process we had there was a

good one. We thought it was legitimate. We thought it did not interfere.

However, as a result of this most recent ruling of the Supreme Court we have

learned that our process would not withstand a challenge, therefore we are

acting very quickly to make sure, Mr. Speaker, that in no way anybody can ever

say again that Newfoundland and Labrador is doing anything which would interfere

with the independence of the judiciary, Mr. Speaker.

I move second reading.

On motion, a bill, "An Act To Amend The Provincial Court Act,

1991," read a second time, ordered referred to a Committee of the Whole House on

tomorrow. (Bill No. 47)

MR. SPEAKER: The hon. the Government House Leader.

MR. TULK: Mr. Speaker, I realize that this is not the

place on the Order Paper but I have spoken to the real Opposition House Leader

over there, the good fellow, and he has agreed to give me leave to give notice

of motion here on behalf of the Minister of Health.

MR. SPEAKER: The hon. the Government House Leader to

introduce a motion, by leave.

MR. TULK: Mr. Speaker, I give notice that I will on

tomorrow ask leave to introduce a bill entitled, "An Act To Amend The Food and

Drug Act." (Bill No. 7)

Mr. Speaker, Order No. 17, Bill No. 32. The Minister of

Justice again, "An Act To Amend The Family Law Act." (Bill No. 32)

Motion, second reading of a bill, "An Act To Amend The Family

Law Act". (Bill No. 32)

MR. SPEAKER: The hon. the Minister of Justice.

MR. DECKER: Mr. Speaker, I wonder could I ask the hon.

Government House Leader that when he calls my bills that he would give me thirty

seconds notice instead of standing up and saying it. I have just gone through

three and now he goes and -

MR. TULK: (Inaudible).

MR. DECKER: Mr. Speaker, the notes are self explanatory.

Clause 1 of the bill would amend

Section 2 of the Family Law Act by adding a

definition of the word, `respondent.' Clause 2 of the bill would amend

Section

35 of the act by adding a definition of the words, `child support guidelines,'

and by adding a reference to

Section 37 in paragraph 35(b). I will not read all

of this, Mr. Speaker. Here it is in a nutshell what this act does, quite

recently there were some changes made to the federal law and by changing our

Family Law Act we are essentially bringing our act in line with the federal

government. Now the hon. members can read the nine explanatory notes which

explains what we are doing here, Mr. Speaker. So I would commend the bill to my

colleagues and ask them to give a swift passage.

MR. SPEAKER: The hon. the Member for St. John's East.

MR. OTTENHEIMER: Thank you, Mr. Speaker.

Mr. Speaker, the legislation, I have had an opportunity to

review it in the past few days and as the minister points out, it attempts to

have some codification of the support payments to bring our situation here in

this Province in accordance with the federal guidelines on the issue of support.

I suppose if there is an area in family law that has been the

most inconsistent over the years it has to do with this issue of spousal support

and child support, and the great discrepancy which exists on the awards that may

be offered or awarded depending on the judge and depending on the court. You

could have the same-fact situation in court `a' before judge `b', and in a

different court with a different judge, the same-fact situation, the discrepancy

could be as much as hundreds and hundreds of dollars. Of course, that sort of

situation was really in nobody's interest. Everything was a guessing game.

I remember saying to people prior to court appearances that

we could perhaps get anywhere from $200 or $250 a month for child support to

maybe $500 or $600 a month in child support. There were no guidelines all judges

could resort to at the time, and this was really the only system that was

available, was the common-law precedent. What did other courts in other

jurisdictions in other similar circumstances award? What were other spouses or

other children being granted by courts by way of support orders?

The federal guidelines, which are essentially very new - it

is my understanding they were brought in in the spring of 1997 - attempt to

bring some organization and system to the whole issue of spousal and child

support by taking into account primarily two factors: What is the income of the

parents, in the case of child support, and how many children are we talking

about? So instead of judges doing what they would have to do traditionally,

review case law, try to review the various facts as they were given in evidence,

whether that be documentary evidence or viva voce evidence, rather than trying

to assess each case on its own individual merit, we now have a situation whereby

we can use a formula of sorts. How much money is the parent making? How much

money is the custodial parent making? How many children are, in fact, the

subject matter of the dispute? Then a formula has been derived and a pretty

accurate figure has been developed, or a

schedule has been developed, by the

federal government to assist judges in simply saying, if there is `x' number of

dollars available and we have two or three children, whatever the case may be,

here is the amount of monthly support.

What this legislation attempts to do - it is my

understanding, at least - is that the Province may now adhere to this same

procedure, and may now, in reaching decisions which are before either a

Provincial Court Judge, a Supreme Court Judge, or a Unified Family Court Judge,

which is also a Supreme Court Judge, may now adopt the same formula, the same

mechanism which was available under federal legislation, and it may now be

adopted under provincial legislation.

I see that as a positive step, Mr. Speaker. It will give some

degree of certainty and expectation to litigants, that when they go into a court

of law to deal with an issue of dispute with respect to support and maintenance,

it can now be anticipated with some relative degree of accuracy as to what the

amount of support or order will be.

Mr. Speaker, the legislation attempts to do that. I see it as

timely. I see it as appropriate. I will again have perhaps other comments during

third reading, but the spirit -

AN HON. MEMBER: (Inaudible).

MR. OTTENHEIMER: We have done that. That was the previous

act.

The spirit of the legislation, in my view, makes sense, and I

have no difficulty in supporting it.

Thank you, Mr. Speaker.

MR. SPEAKER: The hon. the Member for Signal Hill - Quidi

Vidi.

MR. HARRIS: Thank you, Mr. Speaker.

I am pleased to have an opportunity to speak on this bill

which will give effect to the new federal guidelines for support, particularly

for children.

Mr. Speaker, I think this is one of the most positive steps

in the area of family law, on the practical side of family law, because much of

what goes on in courts, whether they are Provincial or Unified Family Courts is

determining the proper level of support for children who are the victims, in a

manner of speaking, of marriage breakdown. They are the individuals who suffer

often terribly because their parents are no longer able to live together and

unfortunately what happens, Mr. Speaker, is that the emotional battles of the

parents get taken out in a failure of one party to support the children and it

is part of the battle between the parents that the children become unfortunate

victims of that battle on far, far to many occasions. Often, as well, it is

certainly a consequence of the parents having very little money and when they

split up, that same amount of money has to go a lot further in supporting two

households.

So, it has caused tremendous problems for judges and it has

caused tremendous problems for litigants, Mr. Speaker, to have to pay the cost

of arguing these matters before court. The results have not always been

consistent and it has been very, very difficult on many occasions to advise

people in this situation as to what their obligations truly ought to be.

So, these guidelines do that, they may not be perfect, they

may have to be revised after experience in some ways, but they certainly

establish a basis on which you can look up the guidelines, you can determine

what it is very likely the judge will do in a particular case, based on the

formulas that are contained therein. They are guidelines, they are not binding

in the sense that they must be always followed in every occasion, but they serve

as guidelines and it provides an opportunity for lawyers to give fairly good

precise advice to clients as to what their obligations would be and, I think,

they are going to lead to a much easier method of negotiating separation

agreements and convincing clients who often do not want to pay anything, that

they in fact will be required to pay and here is precisely how much they will

likely be required to pay, written down in a book established by the Government

of Canada and now adopted in our family courts.

I think it is an example of a very, very practical and

sensible legislation, which I hope has the effects that are behind the

promulgation of it, some of which I have mentioned here today. It will simplify

the process of determining the obligations of parents to support their children

and it will make it a lot easier for a settlement to be reached, a lot easier

for people who need to be told what their obligations are and to be able to be

told that without having to put the other party through a court process to find

out exactly what the result might be. I hope it has that effect, Mr. Speaker. I

support the legislation, I think it is one of the most progressive things to

have occurred in family law in this country.

Thank you, Mr. Speaker.

MR. SPEAKER: The hon. the Opposition House Leader.

MR. H. HODDER: Thank you, Mr. Speaker.

I want to rise to have a few comments on this particular

issue because it follows somewhat from the report that I was part of, The Select

Committee on Children's Interests and at that time we had meetings with the

support enforcement agency in Corner Brook and we met with a number of lawyers

and we met with a great number of parents. One of the things that they found

very frustrating was the lack of legal direction in many cases under law. Mr.

Speaker, one of the problems we have in this country - and the Minister of

Justice should know something about this - is the way in which information is

shared among the provinces on child support arrangements. It has been the

practice for some time that there are mutual agreements among various provinces

however, as the minister knows or should know, some provinces take these set of

court orders from Newfoundland and they put them at the bottom of their agenda

in some other provinces.

Now they would not admit to that but the reality is that,

sometimes if you have a parent who moves from Newfoundland let us say to

Alberta, and in Newfoundland there is a judgement, an enforceable policy in

effect in most cases against the father let us say, for example. However, when

that father moves to Alberta, unless he lets it be known where he is working and

unless he contacts the support enforcement agency, sometimes it can cause great

delays to a mother and to her two or three children who are expecting payments

to come from the office in Corner Brook but they do not arrive because the

office in Corner Brook does not send money that it