1987 Legislative Session: 1st Session, 34th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

FRIDAY, JUNE 5, 1987

Morning Sitting

[ Page

1599 ]

CONTENTS

Routine Proceedings

Private Members' Statements

Mega garbage dumps. Mr. Vant –– 1599

Hon. Mr. Strachan

Ms. Smallwood

Child care. Ms. Marzari –– 1600

Mrs. Gran

Air ambulance. Mr. Guno –– 1602

Hon. Mr. Strachan

The Maquabeak Council. Mrs. Gran –– 1603

Mr. Guno

Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L. Hanson) –– 1605

Mr. Gabelmann

Mr. Sihota

Mr. Clark

Mr. Williams

Mr. Jansen

Hon. Mr. Michael

Mr. Lovick

The House met at 10:07 a.m.

Prayers.

MR. PELTON :

On your behalf this morning, Mr. Speaker, I would like to ask the House

to welcome two guests of yours, Chris and Darrell Frith. They come from

West Vancouver, and I would appreciate the House making them welcome on

behalf of our Speaker.

Private Members' Statements

MEGA GARBAGE DUMPS

MR. VANT :

Mr. Speaker, this morning I'm going to speak about mega garbage dumps,

and believe me, for the most

part I'm all for megaprojects — mega just

simply means big. But I'm also for many things as well, and I'm sure

the hon. member for Mackenzie (Mr. Long) would agree with me

wholeheartedly on that.

The issue is one which involves the

whole province in general, but there is a proposal in my own

constituency of Cariboo for a mega garbage dump proposed by Continental

Environmental Systems Ltd. At this point in time they have been issued

a permit, but thanks to the hon. Minister of Environment and Parks

(Hon. Mr. Strachan), due to the fact that most of the people in the

vicinity of Koster, which is just east of 70 Mile House.... He will not

authorize the movement of garbage from the Greater Vancouver Regional

District to this proposed mega garbage dump just east of 70 Mile House.

Indeed, on January 10 this year a meeting was held. Being a politician,

I'm always willing to listen to what the people have to say, and at

that meeting 178 people were against this proposal and only one person

was for it.

With this proposal, and in the permit which

they applied for and received, they are allowed to move 300,000 tonnes

of garbage to put into this mega garbage dump — so that's what I mean

by big. The problem is that they would be trucking — this is the

proposal — this garbage in trailers that would hold 100 cubic metres.

Each of these vehicles would haul 72 tonnes of garbage. That's a pretty

heavy load, and I figured out that in order to move that volume of

garbage from the Greater Vancouver Regional District to Koster siding

would take no less than 4,250 trips per year. On a five-day week, it

means that one of these giant garbage trucks would be coming and going

up the canyon and the Cariboo Highway about every 15 minutes. As I have

said earlier, I wouldn't want the Gold Rush Trail to become the garbage

trail.

One of the main problems of this mega-garbage-dump proposal in the Cariboo

is that it would be right on the central interior aquifer. This aquifer extends

to Smithers in the northwest. It's underneath Prince George, Burns Lake,

Quesnel, Williams Lake and, of course, 100 Mile House and all the way down to

Clinton. Their permit is for commercial and light industrial garbage. To me,

garbage can be both toxic and non-toxic, given that description. I cannot overemphasize

the importance of this central interior aquifer, because about 12 percent of

our municipalities get their water supply from the wells and from groundwater.

So if we ever pollute the central interior aquifer with leaching from a giant

garbage dump, we are in real trouble. Koster is in the Cariboo parklands biotic

region and gets 20 to 30 inches of annual precipitation. This is in contrast

to Cache Creek, which is in the dry forest biotic region, with only five to

ten inches of annual precipitation.

The

history of the Cariboo regarding proposed dumps is an interesting one.

My partner MLA, the hon. first member (Mr. A. Fraser), just a few years

ago opposed a toxic-waste dump. I want to mention now that in this

province we create about 70,000 tonnes a year of toxic waste. This is

according to the February 1987 edition of B.C. Business Magazine .

Unfortunately, there is only one hazardous waste incinerator in B.C.

and that is out at the University of British Columbia campus. This is

largely unknown, and it's a very small volume plant. It looks after

about 20 customers, mainly hospitals, schools and, of course, the

university itself. It can only handle about 25 to 40 gallons of toxic

waste per hour. Also, according to this same article, Lanny Hubbard,

head of the waste management branch of the Ministry of Environment and

Parks in Victoria, says that some companies treat their own waste on

site. Many ship to the States, others are storing it on site, and still

others, I am very sad to report to this House, are doing with it what

they do with their coffee grounds and tin can type wastes: sending it

to the city dump or flushing it down the sewer.

The

Association of Professional Engineers of British Columbia gave me a

paper concerning preservation of groundwater quality. This policy

statement says the experience in British Columbia and elsewhere has

demonstrated that once water-bearing strata aquifers are contaminated,

remedial action is time-consuming and very expensive. Removal of the

contaminants from. an aquifer or the contaminant sources from a site is

not always possible without incurring a lot of expense. Contaminated

aquifers may not be capable of producing safe drinking-water for

decades and possibly centuries.

[10:15]

Having

said that, I am very upset to report that when the Thompson-Nicola

Regional District in the interior inquired about who would be

responsible for this mega garbage dump, a letter from the head of the

waste management branch says....

MR. SPEAKER : I regret to inform the member his time is up. Maybe he can make that statement in his wrap-up.

MR. VANT : I will just wrap this up. "I have been advised by our headquarters...."

MR. SPEAKER :

Unfortunately, dear member, the time is up, and the rules state that

you must sit down. But you can use your final wrap-up to complete that.

HON. MR. STRACHAN :

I wanted to respond to the member, Mr. Speaker, but I see the critic,

the member for Surrey-Guildford-Whalley (Ms. Smallwood), wishes to

respond as well, so my comments will be brief.

Specifically,

the ministry position on the Koster vis-a-vis Cache Creek situation:

there's very little I can say at this point inasmuch as the Cache Creek

situation — and I believe Koster — is before the Environmental Appeal

Board; so as minister I'm almost in a sub judice situation. But I will

explain to the House the decision that was taken by the ministry.

[ Page 1600 ]

Number

one, both Koster and Cache Creek were approved by the Ministry of

Environment and Parks on a technical basis. However, when the decision

came to my desk. I sought opinion from the local governments, the local

authorities, and clearly the regional district that covers Koster, as

well as both members for the Cariboo, were opposed to this. So on that

basis the ministry denied movement of any garbage to the Koster site.

However, that was not the case at Cache Creek. The Corporation of the

Village of Cache Creek did approve their site. So on that basis the

decision was made by my ministry to allow that transfer of garbage from

GVRD to Cache Creek to proceed.

There's not much more I can

say at this point. It has gone before the Environmental Appeal Board

and their decision won't be made for another couple of weeks.

MS. SMALLWOOD :

I'd like to add my voice to the earlier member's appeal to have the

Ministry of Environment and Parks reconsider what's going on, not only

in the interior. I think we can't forget for a moment that what we're

talking about is the fact that GVRD garbage is being trucked up to this

gentleman's constituency. It's important to recognize that we're

talking about the "not in my backyard" syndrome; that many people

throughout this province are trying to grapple with the serious problem

of waste disposal. The concerns that are being raised by communities

about contamination, the quality of water and the quality of life, have

valid implications. They are serious concerns and should be supported.

the issue of the GVRD garbage that's being trucked up to Cache Creek,

when the regional plan was adopted, my information from the people

involved in that initial process is that there was never discussion of

trucking GVRD garbage anywhere off the lower mainland. The intent and

the work that was done around the GVRD proposal in the first place was

to look for alternatives; to look for a responsible way of dealing with

our own garbage in the lower mainland, not dumping it in somebody

else's backyard. This process has gone on throughout the province for

too long. We can no longer shirk our responsibility. We can no longer

truck garbage or put it on barges to get it out of sight and therefore

out of mind. I think that everyone in this province should be

supporting the Cache Creek residents in their opposition, because

clearly if it can happen in Cache Creek, it can happen anywhere.

The

point that I want to emphasize is that while this is a very serious

problem, it also presents opportunities for us in this province to be

on the cutting edge of the technology for resource recovery, for

recycling and for dealing with some of the questions of conservation

and indeed reducing the garbage stream in the first place.

MR. VANT : Mr. Speaker, I appreciate the comments of the member for Surrey-Guildford-Whalley.

In a letter to the Thompson-Nicola Regional District, the head of the waste

management branch said this: "I have been advised by our headquarters in

Victoria that the province of British Columbia, as issuer of permits, is not

liable for any problems that might arise in the future." This was very

upsetting to the people in the Cariboo. We can certainly learn from the sad

experience of others. For example, right here on Vancouver Island there's

the 30-year-old Hartland Avenue dump, and leachate drains from that dump at

a rate of 900 litres a minute. The dump will be capped with clay over the next

three years. This is from an April 3 edition of the Times-Colonist : the capital

cost of discharging through the outfall is estimated to be $1.95 million.

summing up, I'd like to urge this House and the government that a law

be made by the province to make sure that garbage created in an area

will be disposed of in that area. It could be through incinerators,

recycling or a landfill properly run in their own area. I commend Don

L'Heureux of the Cariboo Clean Water and Air Committee and all their

efforts, the village of 100 Mile House, the city of Williams Lake, and

the village of Clinton for their resolutions of concern regarding this

giant mega-garbage-dump proposal at Koster siding. I, of course, wish

them all the best in their appeal against the permit which was issued.

CHILD CARE

MS. MARZARI :

Mr. Speaker, on August 30 of this year the Ministry of Social Services

and Housing will be going to Ottawa to negotiate a deal for child care.

It's a momentous occasion for Canadians, as it begins to recognize,

after five massive studies over 15 years, that decent, standardized

child care is an issue as crucial to our national infrastructure as

roads and bridges. It is a special meeting constitutionally, as it sets

the stage for future federal-provincial cost-sharing for social

programs. It's the testing ground for the Meech Lake agreement. It's

politically significant because it tells us that the federal government

recognizes the power of the women's vote. And it represents a huge

relief to thousands of women in this country: that finally we are

coming of age as a society and pulling ourselves into the last half of

the twentieth century, recognizing the fact of women in the workforce,

the need for women to have some increased choice, and the reality that

it is a social and economic asset to have decent child care.

Given

the facts, the needs and the realities, then where do we fit in? What

is our plan? What can B.C. contribute to this historic occasion? The

short answer is commitment and responsibility. As the talks progress,

many constituencies will be listening, not the least of which will be

parents of young children; parents of all socio-economic backgrounds —

those who can afford to pay for child care and those who can't. A

majority of them have in common an interest in quality licensed care

under the supervision of trained and qualified teachers. They're both

on the same waiting lists, sometimes 12 months long.

What

separates the socio-economic groups now is that those who can afford

child care have a reasonable choice of the types of care. Those who

can't afford to pay the whole shot themselves are not so lucky. They're

the ones who need it most and have the least choice. I have numerous

letters written to the Premier and members of this House from people

who are in this position. I quote from one letter: "Generally speaking,

in a divorce the woman's financial assets decrease, while the man's

increase. Women are generally left with the children to care for, which

means day-care costs come into play in order for the woman to work to

support her family so she doesn't have to go on welfare. It really is

the vicious circle."

The existing subsidies, recently

increased, are still highly restrictive in terms of who they can go to,

and still require topping up out of the family budget, which costs $90

per month per child on top of the subsidy in a three- to five-year old

centre, and $150 per month for an 18-month to three-year-old centre —

this is in addition to the subsidy. The

[ Page

1601 ]

topping-up that comes out of the individual family member's pocket is quite

substantial.

would suggest, at minimum, that this government set goals for this

conference in August which would include: (1) meeting the need for

licensed spaces from infant care to age 12 — at present we have 22, 000

spaces in B.C. but a knowledge that seven times that number need

licensed spaces; (2) a goal of providing access to the service by

allowing the subsidy rate to float to the need — in 1975 there were

12,000 parents receiving full-time and part-time subsidies, and in 1986

the number was the same, which says a great deal, when the need was

growing by the day and the real incomes of many families were in

decline; (3) a goal of affirming a commitment to licensing spaces in

family and group centres to maintain consistent standards throughout

the province, just as we license or accredit other public institutions

and agencies — day care should not be an exception, especially since

public money is involved; (4) a goal of providing some small per capita

grant per month or establishing a line of credit to assist centres to

deal with low enrolment or emergencies, which can leave a centre

without enough to cover a payroll in a bad month; (5) a goal to study

alternative and innovative child care models, such as using a local

schoolroom as a resource centre or large play-space for ten or 12

neighbourhood family home centres or two or three group centres. For my

colleagues in the House, a licensed family home can care for up to five

children; a group centre cares for up to 25 children.

These

measures are only policy recommendations designed to improve the

existing imperfect system that we have. They don't begin to scratch the

surface of what a universally accessible, affordable system would look

like — not one based on a welfare model, but a care system based on a

preschool education philosophy. That is to say, it would look a lot

different if we considered the developmental needs of the children

rather than the economic realities of their parents.

I know

the minister generally gets upset by the notion of universally

accessible, affordable care. He thinks it's political, and said so when

I asked about it. And it is. All the more reason to discuss it here and

now where it should be discussed, because to this point in this

province it only gets discussed in church basements and mobile units,

at night, when parents are already exhausted and would rather be

putting their kids to bed. We discuss it in the day-care centres,

few weeks ago, when the B.C. Daycare Action Coalition brought the

discussion into the light of day, literally hundreds of people crowded

meeting rooms in downtown Vancouver to speak out loud — people from

across the political spectrum who are tired of seeing a child care

system running at half-mast, not quite recognized and not quite

legitimized, run by underpaid, committed people who, when they

unionize, ironically end up bargaining with parents.

The

federal invitation to consult is an invitation to do some of this

bigger thinking, to think not just in cramped terms of immediate policy

changes but about long-term goals and philosophies.

MR. SPEAKER : I regret to inform the member her time is up.

MS. MARZARI : I would suggest, in fact, just to....

MR. SPEAKER :

Unfortunately. hon. member, we have the seven minutes, and you will

have to allow the members.... You will be able to finish when your

wrap-up time is here.

[10:30]

MRS. GRAN :

Mr. Speaker. I wish that the Minister of Social Services and Housing

(Hon. Mr. Richmond) were here to answer the member's remarks, but he's

out of town, and I'll do my best to put forward the government's

position.

This government, me included, is very

concerned about day care. I've had many discussions with the Minister

of Social Services and Housing, and I understand many of the

difficulties that we would incur with universal day care. Having been a

mother on my own with two children, and having to look for day care, I

can appreciate the difficulties that women have, but I also appreciate

the concerns of the taxpayers and the concerns of government. Universal

day care has a price-tag, and it's a very high price-tag. Considering

the economic condition of our country and, indeed, our province at this

time, it's not a decision that can be taken lightly and made overnight.

may sound cruel, but people have to start taking responsibility for

their own actions. Marriages break up, for whatever reason. It's not

necessarily the taxpayers' duty to pick up all of the bills that evolve

from those marital difficulties. Although no woman should be left on

her own with children and not helped by our society. I also believe

that it's incumbent on the families of that woman and, in particular,

the father of those children to do more to help. I understand that our

government at this time is taking measures to make sure that that

happens. It isn't something that just happens overnight, either. If a

man decides that he is not going to pay support for his children, there

are so many ways for him to get away from doing that that it's

impossible for any government to make certain that people accept their

responsibilities.

I received a letter on the comments I

made some time ago regarding day care from the YM-YWCA in Langley.

Those are the kinds of organizations that I think should be involved in

day care, where it's partially volunteer and partially paid. They are

people that you can depend on to care for your children. They're doing

it because they have a need in their hearts to do something for people.

Although the private sector is involved and should be involved in day

care, as a mother I really would feel more comfortable leaving my

children in a setting where there were volunteers and paid staff

properly trained to look after their needs during the day, to teach

them and not to just let them sit without the activities that children

need to keep their active minds going.

I appreciate the member's comments, but I reiterate: our government is concerned and committed to day care,

MS. MARZARI :

I'd like to suggest that if the government was truly committed to the

needs of children, they would treat day care much the way we develop

our fire departments, police departments, bridges and roads, and build

an infrastructure. If we really believed that parents should take the

responsibility in the community with volunteers, we wouldn't be taking

welfare mothers off welfare and pushing them into unsupervised and

unlicensed trainee positions for day care, we wouldn't be funding

private boarding schools, and we wouldn't be supporting write-offs for

nannies for upper- and middle-income parents. We would be passing laws

to enforce parental leave at childbirth or for sick

[ Page 1602 ]

children.

We'd be building supports for families at risk. We'd be doing a lot of

things if the government was committed. If the government was truly

committed to that kind of philosophy, I wouldn't have to be standing

here.

How do the federal proposals fit into the big

picture? The recommendations of the federal report suggest that over

$700 million will be spent on child care in the '88-89 fiscal year,

with an equivalent amount for subsequent years. Over half of that

amount would be spent by not collecting income tax. The recommendation

which increases the tax deduction to $4,000 per child, with a ceiling

of $12,000, is a major step in the right direction for the

middle-income earner, but for the lowincome earner or the mother on

welfare it brings little or nothing. It might even play into the

disastrous scenario of a welfare mother finding herself hired as a

$12,000-a-year nanny by a professional mother. The irony is that

neither will be guaranteed that her children are receiving quality

care, yet both will be subsidized for that care with public money. We

are in danger of spending public money to undermine an already

vulnerable system.

Some of the forgone revenue will be

distributed to parents who choose to work at home, in the form of tax

credits — a laudable objective if it really had the hope of producing a

choice for parents. However, a ceiling of $200 at this time makes it a

token gesture and will be an insult if the mother on welfare has it

deducted from her cheque.

The remainder of the money is

slated for a direct 50 percent cost-sharing with the provinces, and

that's what I want this province to talk about. I want this province to

approach Ottawa and say: "We want more licensed, quality child care

spaces." That is our goal for the short term at least, and that is what

I would like our minister to come back from Ottawa with: more licensed

spaces on a fifty-fifty cost-shared basis with the federal government.

MR. DE JONG : I would like to ask for leave to make an introduction.

Leave granted.

MR. DE JONG :

I would like to introduce several students from the Christian Academy

in the Abbotsford area, who are accompanied by their principal, Mr.

Blair McHenry. I ask this House to welcome them.

AIR AMBULANCE

MR. GUNO :

Mr. Speaker, I'm glad I have the opportunity this morning to make a

statement on a matter that I believe to be of vital interest to my

constituents in Atlin and, indeed, to people who live in other northern

and rural areas: the continuance of the air ambulance service.

I feel compelled to make this statement because there are persistent rumours

that the entire ambulance service may be on the government's privatization

block. For a number of reasons, that concerns me. If it is true that the government

is considering privatizing the ambulance service and compromising the air ambulance

service, I would suggest that it would be a gross error on the part of the government

and a disservice to the people who depend on this vital service.

set the stage, I'd just like to say that the state of health care in

the north is precarious at best. In terms of chronic care, there are

huge gaps. People from the area that I come from have to travel many

miles and be isolated from friends and relatives to receive medical

care. Mental health services are virtually non-existent.

But

the one area that I think is vital is the emergency health services.

There are virtually no emergency facilities in the north, and even less

trained personnel to look after any major accident. Accidents do

happen, and one that could have had tragic proportions almost happened

in Stewart last winter when one of the logging trucks sideswiped a

busload of about 25 children. It is hard to imagine what would have

happened if there were a more severe accident and more serious

injuries. There would be virtually no facility, no trained personnel to

take care of that situation. It is for this reason that I feel we have

to continue the air ambulance service as it now exists.

Since

its inception in 1974-1976, the air ambulance has proven itself. It's

proven to be extremely effective. For instance, in 1985 there were 600

patients served in B.C. by air ambulance. As to the kind of personnel

that man the services, we have something like 120 ambulance stations

including 90 with full-time staff. There is a total of 700 full-time

and 200 part-time workers. All of these people have industrial first

aid; many have emergency medical assistance classification. The user

cost is fairly minimal: the maximum fee for service is $150.

There

is in existence a wonderful concept called the advanced life support

and infant transport team crews that are stationed in Vancouver. They

deal with premature babies or those with congenital defects. About 500

babies a year are served with air ambulance under this team, babies who

would die without this quick and well-trained team assistance to get

them to the hospital in the urban areas.

Why I am concerned

about the prospect of having the service privatized, Mr. Speaker, is

that the private sector has proven to be wholly inept in providing this

kind of service. Horror stories abound. In Alberta, for instance, where

the whole ambulance service is provided by the private sector, all you

need is a red flashing light and you are in business. If we were to go

back to the pre-1974 days in British Columbia, we would be back to the

days of high, widely variable user fees. This would impact on the

northern and rural areas where it would not be profitable to run air

ambulance services with qualified, well-trained and reputable staff. I

think it is axiomatic to say that the further you are away from

training facilities, the less trained personnel you will get.

the north, this is vitally important. It is in the smaller and more

rural communities where the fatality rates from trauma are the highest.

This is fact; I got this from the Ministry of Health statistics. The

quality and the extent of care rendered to a patient at the scene of

the accident, or need for medical attention during the transport, can

greatly improve the chances of successful recovery in many cases.

represented a client who got into a brawl and somehow injured both of

his eyes. He has at least partial vision today because of the existence

of the air ambulance. Without that kind of quick transport, today he

would be totally blind. There are examples like this, Mr. Speaker. So

the air ambulance provides an essential link from the rural and

isolated areas of the province to other ambulance services, to the

medical services in larger centres.

If the ambulance

services are privatized in this province, we will be turning back to

the former days when ambulance services were not regulated, were

unrestricted and costly. Northerners would be especially hit hard by

cuts in services and high rates. Health care in B.C. would be returning

[ Page 1603 ]

previously

variable standards, and the well-being of British Columbians would be

severely compromised. For this reason I implore this government that

this service should be exempt from any consideration of privatization.

[10:45]

[Mr. Pelton in the chair.]

HON. MR. STRACHAN :

Mr. Speaker, I rise to respond today as a northern member and in part

share the concern expressed by the member for Atlin. But for another

part, I totally disagree with his premise that the private sector is

inept. I can't accept that at all, and Mr. Member, I must give you some

evidence.

The air ambulance is now, to a large degree,

covered by the private sector. You might recall the member for Prince

George North (Ms. Boone) indicating, a month or two ago, that if we

didn't get an ambulance dispatch in Prince George we wouldn't have a

private sector air ambulance located there. That's totally erroneous,

of course, because the two are unrelated. The evidence is that the air

ambulance is in Prince George now, operated by Harbour Air. It's a

Citation and has equipment similar to what we have in government air

services.

The private sector is rapidly filling in the air

ambulance service in the north. Coincidentally, the Minister of Forests

and Lands and I were in Prince Rupert on business about three weeks

ago, and there was a Learjet in; the child life support service was

attending a call there — again private sector, and in fact a better

service than government could provide because a Learjet is 70 or 80

knots faster than the Citations that we have. So the argument that the

private sector cannot supply appropriate air ambulance service is

totally erroneous. I would submit that in many cases it can do it

better than government can, and the evidence is there. It's in the air

and it's in place now.

I do, though, want to agree with the

member, as a northern or central interior MLA myself, that we have to

improve services. I know that in your area, Mr. Member, and in the

tidings of Mackenzie and Prince Rupert, you don't have an awful lot of

landing strips because of the topography. You're restricted to daytime

helicopter flying only for Medivac, and that is a serious and critical

consideration. Currently, federal Transport requires that for a

helicopter to operate on instruments it must be equipped with twin

turbines, and that's a very expensive operation. That's the type of

helicopter that Helijet would fly from Dallas Road here to downtown

Vancouver. Coast Guards can fly them, but it's extremely expensive

equipment.

In the coastal tidings, particularly Rupert,

Mackenzie, Atlin and the rural areas, there is an abundance of single

turbine equipment, such as the Jet Ranger, which is the real little

workhorse of the north; but regrettably it doesn't have instrument

capability and therefore is precluded from flying in the evening or

during foggy weather. So that is a very real concern for the people who

live there, and it impedes the delivery of health services. I guess the

argument could be put that the government air ambulance service, or the

Coast Guard or somebody, should fund and put into operation the very

expensive twin turbine equipment. That's appealing to all of us who

consider the health care of the rural areas. But at that point I guess

one has to consider the incredible expense of that type of equipment,

and the fact that you would need quite a few of them really to have a

comprehensive service up the west coast of British Columbia.

Nevertheless, that's an economic decision that government would have to

make.

In any event, that's all I really wish to say on

this, Mr. Speaker, except to support the member in his concern for

health in his riding and other rural ridings. I totally agree with him

on that. However, the government must offer total disagreement on the

notion that privatization of air ambulance services will be to the

detriment of that service. We have many private carriers operating now.

I have one in my home. I've seen them in Prince Rupert and in other

areas, and it's working out very well, if not better, than the

government service.

MR. GUNO : Well. maybe my

characterization of the private sector as wholly inept is a bit strong;

I'll just say inept, not wholly inept. I take the proposition that

there are isolated instances when the private sector comes through, but

I think what we're talking about is a continuous service. Also, in the

north, you've got to admit that.... What are the incentives for an air

ambulance to provide services where it would be sporadic and not...?

The costs would be higher.

I just want to cite the costs of

the existing provincewide service, and why it's justifiable. It's part

of the quality of life and well-being of all British Columbians, which

we all expect. Emergency services have never been over 3 percent of the

Ministry of Health's budget. It's now $15 million to cover the whole

province for a year. That's cheaper than the fire department's budget

in the city of Vancouver. So it's really miniscule compared to the kind

of constant, dependable and reliable service that is now provided. I

think northerners would be far more comforted with the notion that this

service is guaranteed and is not going to depend on the forces of the

marketplace. That is why I think it's a non-negotiable item.

MRS. GRAN : Mr. Speaker. before I start my comments, could I have leave to make an introduction'?

Leave granted.

MRS. GRAN :

In the House today is a very special lady who has supported me every

day and every hour of my whole life. I'd like the House to welcome my

mother, Hilda Ewen, and her friend Eileen, from Esquimalt-Port Renfrew.

MR. SIHOTA : Mr. Speaker, I'd also like to have leave as well to make an introduction.

Leave granted.

MR. SIHOTA :

I didn't realize that the parents of the first member for Langley were

here, and I too would like to ask the House to acknowledge their

presence here today. They are constituents of mine and have been in

touch with me from time to time, and I know from talking to them that

they are very proud of the achievements of their daughter. So would the

House please join me in welcoming them.

THE MAQUABEAK COUNCIL

MRS. GRAN : May I thank the member for Esquimalt-Port Renfrew for those kind words.

My comments this morning, Mr. Speaker, are about a woman who stands tall but sits in a wheelchair. Her name is

[ Page 1604 ]

Dorothy

Maquabeak Francis. She is a native Indian from the Ojibway tribe from

eastern Canada. She's 75 years of age and she is the kindest, most

gentle person I have ever met in my life.

Shortly after I

became an MLA she phoned the constituency office and suggested that she

needed help. I went to her home, and I have to say that it was a

humbling and moving experience to listen to her talk about her own

people. Dorothy was taken from her home to live in a Christian home

with a Presbyterian minister and his wife, and she said that they

treated her extremely well and loved her and gave her everything that

she could ever need, but that she never felt comfortable away from her

people. She explained to me that although her people were very

materially poor, they were extremely rich in spirit.

Dorothy

is attempting to start what she calls the Maquabeak Council, and that

council is to teach young native Indians their heritage, their culture,

to help them with drug and alcohol dependencies, and also to help those

who dropped out of school to finish their high school years.

Dorothy

gave birth to 11 children, and nine of them are living. What was

interesting is that this woman is 75 years old, she's confined to a

wheelchair, but her family look after her. She lives in one of her

daughters' homes, and they make sure that she's comfortable all the

time. I think Dorothy and her family are an example of how we have to

start living in this country. We have to start caring about one

another, and not the state looking after us. I'm not trying to make an

argument for deinstitutionalizing people; I'm just saying that watching

the love that flows from those people that came from that woman, I know

that they will look after her, regardless of what happens to her, for

the rest of her life. It was a very heart-warming experience for me.

Dorothy received the Order of Canada for outstanding achievement and merit for her work for her people.

Now

I have asked the Minister of Tourism, Recreation and Culture (Hon. Mr.

Reid) for funding for the Maquabeak Council, and I'm hoping that the

minister will see fit to find money for this council. I think the only

way that we're going to understand one another, the different cultures

and the different heritages, is to start caring enough to sit down and

forget about political differences. And I think we've proved that in

the Legislature. We've proved that we can still care about one another,

and we don't particularly have to agree with one another's politics. I

think that we've done a really good job of proving that in the

Legislature.

Dorothy asked me, when I talked to her

yesterday, if I would pass a message on to the government leaders in

this Legislature, and her message was to understand one another and to

care, and in particular, for those of us who don't know a lot about the

native Indian people, to listen to them and understand them, and to

recognize the gentleness that they possess and which perhaps a lot of

us don't.

Mr. Speaker, I thank you for allowing me to make those comments, and I hope that the member for Atlin (Mr. Guno) will respond.

MR. GUNO :

Mr. Speaker, I'd be glad to respond to the member for Langley's

comments. I first must commend her for her sensitivity and generosity

for bringing this matter to the attention of the House.

want to concentrate on why this woman feels compelled to form this

council. It's not a secret that in British Columbia we have an almost

unimaginable despair among native young people which translates into

some of the highest suicide rates in Canada. A number of them are on

alcohol and drugs; about 90 percent are unemployed. The despair and

hopelessness of young people today is a tragedy.

I would

support anything that we can do to provide support for any initiative

like this, a self-help kind of thing that would help alleviate the

suffering of these young people. Mrs. Francis's initiative should be

supported if it's going to instill a sense of pride and identity in

these young people.

It's ironic that we take such pride in

the beautiful longhouse just a block from here and all the wonderful

totem poles, but we don't know what it represents in the people that I

t represents and the fact that we're completely ignorant of their

plight today. Shedding crocodile tears over the plight of these people

is simply not enough. I'm not suggesting what the member said was not

genuine.

I think that the best antidote for young people,

not only for native people but for young people in British Columbia, is

to provide better job opportunities. That is the best way that we, as

government and opposition, can work towards dealing with the sense of

despair and hopelessness that's so rampant among our young people,

especially the native people.

I would again commend the

member for her representation of Mrs. Francis. I think it's a great

idea. The missionaries in the last half-century have done a real job in

terms of eradicating a sense of identity. There is a sense of

renaissance among our young people in terms of trying to restore a

sense of their own identity. I recognize your effort and wholly support

it.

[11:00]

MRS. GRAN : Mr.

Speaker, I would just like to close by saying that the very basis of

Dorothy's desire and drive to look after her people is her Baha'i

faith, which is similar to Indian beliefs. She talked at great length

about what they do, and she talked about sweat-lodges and some of the

dances that they have. The basis of that council will be to teach young

people about their spiritual beliefs. Dorothy feels very strongly that

that's what's lacking in our society; and quite frankly, I do myself.

would just like to expound a little further on the cultural council

that she's trying to establish. The purpose is to provide a centre for

the furtherance of native Indian culture and education, through

discussion, hands-on training, social gatherings, native religious

activities and spiritual training, workshops and school programs and

the furtherance of national native Indian education for off-reserve and

on-reserve native peoples. The Maquabeak Cultural Council was organized

by Dorothy Francis at the request of her grandchildren, who expressed a

need for guidance. I think that was the start of the council. Dorothy

has grandchildren who have drug and alcohol dependencies.

I thank you for listening and caring, and I'll tell Dorothy about the wonderful reception her project had in the Legislature.

HON. MR. STRACHAN : Mr. Speaker, I would ask leave for the committee on Bill 19 to sit.

Leave granted.

[ Page 1605 ]

INDUSTRIAL RELATIONS REFORM ACT, 1987

(continued)

The House in committee on Bill 19; Mrs. Gran in the chair.

section 29 as amended.

MR. GABELMANN :

When we finished yesterday afternoon, we were beginning the discussion

about the deletion from the existing Labour Code of the words in 53(l)

"or part of it," which modifies business. Until now, if a part of a

business were sold, the collective agreement and the certification

would follow. With the deletion of these four words, it is our concern

and our fear that, in fact, the certification will not follow with

those small parts, because the new wording requires that there be a

"substantial" part.

Of course, the test of "substantial"

will be argued. We won't be able to conclude in this House during this

debate the meaning of the word "substantial." Clearly, it will be

argued — I think successfully — that it was the intent of the

Legislature to make it possible for less than substantial parts of

businesses to be sold without the certification following to the new

firm or company or operation or service or whatever it happens to be.

That

concern is best expressed, I think, by citing a specific example. I

want to cite an example that I am sure the minister has had drawn to

his attention. It relates to the Vancouver Museums and Planetarium

Association, which is certified and has a collective agreement with the

municipal and regional employees union in Vancouver. The notes I have

are minutes of the board and various bits of correspondence. There is a

plan to divide this particular association into four separate parts.

There is a concern — and presumably it will be argued in front of the

council, if the council actually is able to do business — about whether

or not these four quarters of this existing association are substantial

parts of the business or are just parts of the business.

one quarter of the existing association is defined as not being

substantial but rather defined as just "a part of," then the

certification will not follow. That just does not make any sense. It

doesn't make any sense at all that an association of this kind, whether

deliberately or not, could escape its certification and escape its

collective agreement simply by dividing into less than substantial

parts.

I wonder if the minister has any comments about that particular point.

HON. L. HANSON :

The member for North Island, I would suppose, is dealing with a

hypothetical case in this scenario. But I think I would like to dwell

on what we see as a business or a substantial part of it. I think we

feel that a business is a combination of a number of things: it is a

combination of people; it is a combination of the assets that it holds;

it is a combination of the goodwill that it may have developed as far

as an operation is concerned.

I think the real thing that

has to be considered is whether there is a discernible business there.

I am not giving legal opinions, because I don't have that qualification

as my friend opposite does. But you know, if there is discernible

continuation of a business, there's no suggestion that we want to see

the responsibilities gained by the employees through the collective

bargaining process lost.

A business is not just one thing.

It isn't only the skills of an individual; it isn't only its assets: it

isn't only its goodwill. All of those things have to be considered in

hypothetical cases. All of the facts will have to be presented to the

council, and the council will have to make the determination that in

fact there is a business — or a substantial part of it, as the proposal

is — being disposed of. We agree completely that that employer's

responsibilities relating to his employees, which have been fairly and

honestly bare armed, should follow. And we would want that

responsibility....

But again, you know, it's "a business or

a substantial part of it." It's not just something that follows with

the land only or with the building only, or with any single thing in

isolation. I think there are determinable circumstances that the

Industrial Relations Council will be able to rule on — whether there

has in fact been a transfer and discernible continuity of a business.

MR. GABELMANN :

The minister's first comment was that he supposes this is a

hypothetical case. Everything is hypothetical until and unless the law

is passed and until and unless it's proclaimed, if ever. So we're

obviously dealing with hypothetical cases. I was citing what is

probably not a hypothetical possibility, and I made a mistake when I

said "four parts." I meant to say "three" — three separate parts.

this stage of the debate we're not talking about a lot of things that

the minister was talking about in terms of (1.1), but rather 53(

l) itself, which is the question of making.... The Legislature is making a

conscious decision by this change to eliminate four words, and those

four words are "or part of it," so that "substantial part" becomes the

test. I think it's a fair concern that people will argue, and may well

argue successfully in front of the Industrial Relations Council, that

the decision of the Legislature to delete the words "or part of it"

means that the Legislature does not want certifications to follow when

parts of a business are sold and those parts are less than substantial,

however that's defined. That's the clear intention of the Legislature.

Once the law is determined by tests of various cases, there will be

then a clear guideline....

I think I'll pause for a moment and allow the first member for Dewdney (Mr. Pelton) to have a word.

MR. PELTON : May I have leave to make an introduction, please?

Leave granted.

MR. PELTON : Thank you, Madam Chairman, and thanks to the hon. member for North Island as well.

Hon.

members, in the precincts today are a large number of young elementary

schoolchildren from Thornhill Elementary School in Maple Ridge. These

children have been accompanied today by their parents and by some of

the teaching staff. Some of them have managed to make it into this

House, and I would ask the House to please make them welcome.

[11:15]

MR. GABELMANN :

I might say to the visitors in the gallery: welcome as well from this

side of the House. My apologies on behalf of all of us for the boring

nature of this debate. It comes from a requirement we have as

legislators to try to sort out what these words mean. Sometimes that

can be fairly dull for people who have to sit and listen, or perhaps

[ Page 1606 ]

later read Hansard .

Nevertheless, it's very important, because what we're talking about

here is whether or not, for people who have decided to be represented

by trade unions when their employer begins to sell off parts of the

business, their trade union rights will continue in the new businesses

that are spun off from the original one.

At this point of

the debate, we're trying to determine what the difference is between

part of a business on one hand or a substantial part of a business on

the other hand. I was making the point a moment ago that we won't know

how those words are defined until the issues are tested. But once the

test has been determined and it's clear how much of a business is

defined as substantial, then we will see a rush of selling off and

spinning off various parts of operations, which will allow, therefore,

the deunionization.

The member for Esquimalt-Port Renfrew

(Mr. Sihota) yesterday raised the hypothetical situation of a bakery

inside a supermarket. The minister's response, as I understood it ' was

that he would have thought that was a substantial part Of the business,

and therefore the certification would follow even though the business

was privatized. That's very debatable. Maybe the bakery example is one

that would be included.

You can guarantee that it will be

argued — you can absolutely guarantee that — and without going into

great detail, we can all think of many other ways in which employers

will be able to carve out elements of their particular business,

contract them out, sell them and then contract back the services and

have deunionization take place through that process.

So I

guess I'd like to ask the minister this: if, as it appears he believes,

he wants certification to follow, for the most part — which is, I

think, the direction of his comments — is he convinced that it will, as

a result of this change? Or would he not now consider reinstating these

words? He is saying in his responses that he believes parts of the

business should be included in terms of a definition of successor

rights, but he has taken the words out. If he believes "part" should be

included, why can't we just put the words in right now by simple

amendment?

HON. L. HANSON : Again, I think in the

legislation the basic principle, the fundamental principle, remains

intact: that bargaining rights acquired by organized labour and their

representatives should be protected. But "part" of a business is always

a questionable sort of thing, and it narrows the ability of the

Industrial Relations Council to make a determination that.... You know,

what is the essence of the business? Because it's made up of so many

things.

I know that we're discussing the wording, but I

guess the message that I'm trying to get across is that there isn't a

part of the business, in itself, that means the business. There are so

many things that make up a business. Again, I think I totally agree

with the member opposite that the Industrial Relations Council is going

to develop criteria and jurisprudence as they go through the various

cases.

In the case of the bakery that was mentioned earlier

— I guess it was yesterday — naturally I've had an awful lot of

discussion with various people who are very knowledgeable in the

industrial relations field. From that discussion I have determined that

in that situation the certification and the responsibilities that

employee had taken on by signing an agreement would follow. I sincerely

believe that, because discussion has gone on to a great degree of

various circumstances and so on within our discussion in generating

this particular clause.

Again, I can say only that there

isn't one particular thing that makes up a business. It's a combination

of so many things, and the determination will be - and then it goes on

to say "or a substantial part of a business" — on what makes that up.

That's the determination that the council will make when they have a

case requesting the successor rights to follow. But we don't believe

that the sale of one particular part, or one particular asset maybe is

a better way of expressing it, is in itself justification that there

should be a mechanical certification following. But if the

determination of the sale of one particular asset by the council is

that that is the essence of the business, then I would suggest that

very likely the certification would follow.

MR. GABELMANN :

Well, the essence of the business — there we go. That's a different

answer than the bakery example in Safeway, because the bakery is not

the essence of the supermarket's business. So that's a different answer.

want to suggest that these changes and several of the changes taken

together in fact come from a feeling on the government's part that the

labour board was required to make the wrong decision in the Gibraltar

case and in the Frank Browne Acoustics case. I want to cite the Frank

Browne Acoustics, because it's a case that I think — I know — will be

overturned by the new language, and I want to give this as an

illustration of a situation where, under the old law, which is still

the law, successor status was determined, but under the new law it will

not be. I will readjust some excerpts from the LRB

summary. It's a 1984

case, and the notes about the kind of issue it is read as follows:

"There

had been a transfer of part of the business of one company to another,

within the purview of

section 53 of the Code. This case involved the 50

percent shareholder and director of the day-to-day operations of a

small construction company giving up his interest and forming a new

company."

The facts of the case are as follows:

"This

involved an application pursuant to

section 53 of the Code for a

declaration that Interior Wall was a successor employer to Frank

Browne. The union was certified to represent the employees of Frank

Browne, and had a collective agreement with that company. The shares in

Frank Browne, a company involved in the drywall end of the construction

business, had been held fifty-fifty by Richard West and Mark Insley.

Both had been directors, with West as the president and Insley as the

secretary. Apart from work performed by West on his approximately

twice-a-month visits to Kamloops, Insley had taken care of the

day-to-day operations of the company. Deciding that work was dwindling

in the Kamloops area and that he wanted to work non-union, Insley had

decided to break away from West. He had transferred his shareholding in

Frank Browne and had Interior Wall incorporated with himself as the

sole shareholder and director. Frank Browne still pursued work in the

dry walling business."

Then the board in its reasons — and

I won't read all of these — goes through the arguments. They decided

they needed to adopt the principles that had been adopted in the

[ Page 1607 ]

Gibraltar case a couple of years earlier, so I won't go through all of the reasoning, but I'll just read the decision:

"Interior

Wall was the successor to a part of the business of Frank Browne within

the meaning of

section 53 of the Code, and accordingly was bound by the

collective agreement with the union. A certification would be issued

showing the union as the bargaining agent for the employees of Interior

Wall. Pursuant to

section 53(2), Frank Browne was declared to retain

all of its obligations to the union under the Code and its collective

agreement with the union with respect to its continuing operations."

as I understand that particular case, the board made a determination

that in fact there would be no opportunity to escape the certification

by the establishment of this second business. Under this new law now,

clearly and unequivocally the decision would be reversed.

There

isn't a lot more that you can say, other than that's wrong. It's

inappropriate that certifications are going to be able to be avoided as

a result of that kind of manoeuvring, and I know that members of the

Social Credit Party — if not all of them, many of them — are persuaded

that that should be the case, that the market economy demands that

people should be allowed to go and compete more effectively by paying

lower wages, so that they can stay in business, so that they can make

more money or whatever it might be they want to do.

I know

that is the philosophy of a lot of people on that side of the House. I

guess that is what underlies this particular

section and

section 25

earlier: simply, that the rights of capital are more important than the

rights of labour. That's a simple choice. We are with Abraham Lincoln

on that question. We think that the rights of labour are actually more

important than the rights of capital because the rights of labour are

rights of people and the rights of capital are simply rights of money.

Abraham Lincoln was clear and forthright on that issue on many

occasions, and he in fact took a more radical position than we would

take, because our argument in the final analysis would be that there

needs to be a fair balance between the two. But clearly, the effect of

this kind of legislation is to allow the people, such as the ones cited

in this Frank Browne case, to effectively get rid of the union

agreement, which means they could get rid of the people who have been

working for them, all based on this idea that the most important thing

in our society is money and that people don't matter. That is really

what we are talking about. It is a philosophical difference between the

two sides of the House.

The Minister of Tourism (Hon. Mr.

Reid) doesn't like that, because he doesn't want to have his party and

the people he associates with characterized in this way. But it is

fair; it is the only conclusion one can come to in a fair reading of

this section. I cited yesterday the four new ways in which

certifications can be avoided — be escaped from, if I can put it that

way. It is clearly because of the decision the government has made that

it wants to allow business people to be able to operate in the economy

in an unimpeded way. It is part of the same philosophical direction

that leads to the deregulation arguments. It is part of the same

philosophical direction that leads to dogmatic calls for privatization.

It is part of a view of society that says that all that really matters

is that capital be mobile and unimpeded, on one hand, and that on the

other hand, rights of individuals who may have worked faithfully for an

employer for years or decades matter not in the least.

is a major difference between us. I characterize it one way; Social

Crediters characterize it another. But that is, as far as I am

concerned, a fair

summary of the differences in philosophy, well

reflected here in

section 29 of this bill.

[11:30]

HON. L. HANSON : I obviously have a disagreement with the member opposite, but I do respect that it is his right to have that opinion.

There

is a fact out there that the employer is a person too. He generates

employment opportunities. I don't think it is totally related — the

suggestion that the members' philosophy on this side is that anything

goes for the generation of money. I have a very difficult time

accepting that.

If I remember correctly — and again, I am

not a student of the numbers of cases that have been cited; I have

looked at some — I think that the Frank Browne decision said that the

individual skills was an important factor. I think that that philosophy

we certainly agree with. But we also have a difficulty in accepting

that it is the only factor. A business has people, it has assets and it

has skills. I guess the speculation that the member is making is that

the IRC will reverse that particular decision. I am not that familiar

with it, but I can't accept that. I don't believe that will be the

case, and I would suggest that we will await their decisions and see

that. But the main thrust that we are trying to point out is that there

is not one thing in isolation that makes up the

interpretation of a

business.

Certainly the employees' rights that they have

faithfully bargained for should be protected. But I think it should

also be the individual's rights that if he wants to break away from his

company and start a new business, as long as it is not an attempt to

avoid the bargaining responsibilities that the company had and start

another business, that is fair and reasonable; and also that the union

has the opportunity, as they should have, to organize that company, if

that's the case.

MR. SIHOTA : First of all, I want to

pick up on the final comments the minister made during the course of

his statement a second ago, and then I want to talk about some

components of

section 29.

The minister was saying — if I

heard him right — that he wants to encourage or make it possible for

individuals to break away and exercise their own initiative or right,

as he put it, to engage in a business. Believe you me, I can’t see why

anybody would want to deny anybody the opportunity to exercise that

initiative. The minister also said that's okay as long as the effort is

not to attempt to evade or avoid the provisions of the collective

agreement. There is no disagreement with that, in my mind, as well.

Clearly, if that's the intent, the successor provisions ought to come

into play.

But that's precisely what the current

section

does. It certainly allows for the exercise of that individual

initiative. I know of no instance where it has frustrated that

individual initiative. On the other hand, it also tries to ensure that

if people want to exercise that initiative but are doing it to avoid

their contractual obligations with their employees, that will be

arrested. So once again, it begs the question of why the changes, if

indeed the current practice is precisely what it is that the minister

has articulated it to be.

I'm at a loss to understand, if

that is where the government is coming from philosophically, why it

would want to bring about these types of changes. In addition to that,

the minister said prior to that that no one factor ought to be the sole

determinant of whether or not successorship should apply. Once again,

the labour law jurisprudence is very clear

[ Page 1608 ]

that

there are very few decisions where one factor was the sole determinant.

The Labour Relations Board has always taken the approach of looking at

all of the circumstances of the change, and coming to a decision on the

basis of all of the circumstances.

Yesterday I tried to

list some of the variables that the Labour Relations Board will look

at. Once again, that's not different at all from what the minister is

saying, and hence the question again: why the change? What was wrong

with the old approach that warrants this type of change? Either it

brings into question the motivation and the intent of the government,

or it must be done to remedy a wrong that was happening under the

legislation.

Let's deal with that part of it, because the

section as amended now has those words "part of it" removed, and we

have now put in the test of "a substantial part" of its business. That

certainly changes the test significantly, because if a part of the

enterprise was going to be captured if it was sold, then the successor

rights would apply.

Yesterday I gave the minister an

example. I said that if a bakery operation in a Safeway store was sold,

then that is obviously a part of the store. The minister said, when we

concluded yesterday, that he thought that if that part of it was sold,

then in those instances the successor rights would follow. But I think

it's fair to say that a bakery within a large grocery store is

certainly not a substantial part of the operation. In fact, it's one

component of several, but certainly not a substantial part of a grocery

store. I don't know how you measure "substantial" — if it's in square

footage or volume of sales or whatever — but to use that example....

The minister said that in that instance the successor rights would

follow the sale. Yet we're talking about only a part of the business,

and certainly not a substantial part of it, I would venture to say, no

matter how you measure it.

I gave two methods of measuring:

through the volume of sales or the square footage, or even the number

of employees. I think by any one of those factors it would not be a

substantial part. But it would be a discernible part, to also use

language that the minister said. But a discernible

part is quite

different than a substantial part. Once again, I try not to get

heavy-handed with my legal background, but I think I've tried to make

the point in layman's language. But the minister obviously must see

that there is something different in a discernible part, as opposed to

a substantial part, and I hope he sees my point with respect to the

bakery operation.

In light of that explanation, does the

minister still think that the bakery operation would be captured by the

successor rights provision as it stands before this House? If so, why?

Does he not see my point that it may not necessarily be a substantial

part?

I'll leave it there and ask the next question, which

I think is an obvious question. But I'll pause there. Does the minister

still believe that that example would be captured by this

section that

we're debating right now — the bakery situation?

HON. L. HANSON :

I said when we opened debate on this

section that we're changing the

language because the criteria in the Code are very — what should I say?

— limiting. "A business or a part of it" is a very narrow definition,

and what we're trying to do is ensure that the essence of the business

has been sold — that there is a continuity.

I've got a note passed to me, and I'll admit it's a note, because I'm not a lawyer, as my friend is.

This

was a discussion among the many discussions we had on this particular

section as we were drafting it. There are some judicial

interpretations

of the word "substantial" which suggest it probably means discernibly

separate and not minor or trivial. That's the message that we're trying

to put out in the wording in the act. From the discussions that I've

had with a number of people — as I've no doubt admitted before, I've

had a lot of advisers — I sincerely believe that the case of the bakery

suggested earlier would be caught.

MR. SIHOTA : I'd

like to believe that it would be caught too, believe you me, because it

should be caught. I'm glad that the minister and I agree that it should

be caught. But a bakery, as I said before, is a small component of a

large grocery store; it is not a substantial part of the grocery store.

The minister said, yesterday and again today, that he thinks a bakery

would be caught by that section, But it's not a substantial part, and

it demonstrates, I think, the flaw in the wording of this section.

The

minister says that in some jurisdictions — not all, but in some

jurisdictions, if I heard him correctly — "substantial" has been

interpreted to mean a discernible portion of the operation. I hope that

that is the

interpretation placed in B.C.

May I ask the minister this. I ask this question very honestly, because Hansard

is used in adjudicating these matters, so I think it should be a part

of the record. Does the minister think that the definition of

"substantial" as it appears in this

section includes a discernible

portion of an operation?

[11:45]

HON. L. HANSON :

The Labour Relations Board is going to consider all of the facts in the

case. In the suggestion raised with the bakery, I really believe that

that will be dealt with by the IRC in the manner the member opposite

suggests it should be.

I'm not sure — because it's the

jurisprudence of the board as it's developed in the particular

circumstances — that we are going to resolve them as we stand here

debating them. Again, the question of successorship should not be a

mechanical transfer. It should be that there has been a discernible

continuity of the business that was going on there. As I suggested

earlier, the word "substantial" has, in some cases, been determined as

discernibly separate and not minor or trivial. I think that's the

direction we are giving to the IRC in this

section of the act.

MR. SIHOTA : Madam Chairman, is the minister then saying that in his view the word "substantial" means "discernibly separate"?

HON. L. HANSON :

Madam Chairman, I'm not necessarily saying that, but it could be — if

the member opposite is cross-examining me on that. I think we're

debating the philosophy of what we're doing here, which is what I'm

trying to do.

MR. SIHOTA : We debated the philosophy

in second reading, and as I understand this process, the minister is to

be explaining to us what he means by the various sections. I don't

necessarily want to get into the philosophy of it. I'm not trying to

cross-examine the minister. It reminds me of when I used to be on

municipal council. I think it's just part of your training sometimes.

You tend to frame questions that come

[ Page 1609 ]

across

as cross-examination. When I was on council, occasionally when we would

have a contentious issue with people appearing in front of council and

the hall was packed, I would be accused of the same thing. Believe you

me, I'm not trying to cross-examine, but I am trying to get an answer,

because I think a lot does turn again on this section. It's one of

those sections that I think we have all pointed out as being a

significant one. That's why we're spending so much time on it.

The

minister is sort of saying yes, the word "substantial" means

"discernibly separate" and no, perhaps it doesn't, and that in some

jurisdictions it has been quoted that way and in some it hasn't. I'm

sure now the minister sees the point that I'm making. What he would

like to see in principle happen — i.e., a bakery being sold and it

being discernible and hence captured by the successorites — may indeed

not happen because of the framing of the

section which talks about

"substantial." I think we can both see, I would hope, that lawyers on

two different sides of this argument are going to argue the meaning of

the word "substantial." That is going to become the pivotal concern in

the eyes of the council.

I made this point before, but I

think it warrants being made again. What's going to happen is a board

is going to be faced with the decision of whether or not to water down

the word "substantial." You could place a very high onus by saying:

"No, you've got to prove quite a bit if you want to argue the successor

rights." Or alternately, you could lower that onus by broadening out

the definition of "substantial" to include concepts like "discernibly

separate," which is the concept that the minister has mentioned. You

can also say: "No, 'substantial' means something greater than 50

percent of the entire assets and an undertaking of the operations of

the enterprise," in which case the bakery situation would not be

captured by this section.

The council is going to have to

make a determination of how it defines the word "substantial," because

it remains undefined under the legislation. Part of that will be

determined by coming to Hansard

— and we've already talked about that, so I won't go any further — and

part of that is also going to involve them going back to the old

legislation to also determine what indeed the Legislature's intent was.

The

old

section said "or a part of it." If you think about that, to me it

would suggest that the standard is going to be raised, that the onus is

going to be higher. It will not mean "discernibly separate," because

"discernibly separate" is far closer to the words "part of it," than it

is to the word "substantial." If you were to have a sliding scale and

you put "substantial" here and "part of it" over here, "discernibly

separate" tends to lean towards "part of it." But because the

legislation has removed the words "a part of it," then it seems to me

it only stands to reason that if that end of the scale is removed, then

the council is going to be leaning more towards the more onerous

definition of "substantial," as I've just laid out. I picked a simple

way of doing it to hammer home the point — like I say, something more

than 50 percent of the assets and undertaking of the company; it may be

two-thirds of it, I don't know. I think you can see there arises quite

a debate and that debate would put into jeopardy the conclusion that

the minister just made about the bakery example I provided.

believe the minister when he says that he would want the bakery

situation to be captured by the successor rights provisions. I quite

honestly believe that what you say is what you believe. But I also

would like to think the minister can believe me when I say that there

is a more than plausible, more than reasonable argument that given the

history of the legislative changes, the standard is going to be raised.

It is a sufficient answer, I guess, for the minister to say: "We will

wait and see what happens." But in reply to that — because I anticipate

that the minister is going to say that — why wait and see, when you can

come up with language that will capture the very thing the minister is

saying that he wants to capture under this section?

I want

to ask why the minister did not simply decide to put in the following

language: "...where a business or a discernible part of it or a

substantial part of it...." We won't get into the asset question for

the time being. Would that not crystallize the minister's intent? Why

did the minister not choose to put in the words, "a discernible part of

it," instead of just removing the whole phrase "part of it"?

HON. L. HANSON : I think the member mentioned earlier that the purpose of this debate is to get into Hansard some of the

interpretations that we see here in the House, and certainly that is part of it.

Again,

"discernible part of a business" is I think used in the wrong context

here. You can look at a discernible part of a business. If it's a radio

station, you can look at a microphone and say: "That's a discernible

part of the business." But that is not what we are trying to do. We

want a much broader

interpretation. We feel that the wording we've put

in the act will provide the ability for the Industrial Relations

Council to make that broader

interpretation. We honestly have a

difference of opinion. In going through this and in drafting Bill 19,

all of the things you are suggesting have been kicked around, discussed

and so on, and we feel that the description "a business or a

substantial part of a business" does capture the essence of a business,

which is what we're saying, and what we've said for a number of times.

guess a discernible continuity between a part of the old business and

the new business is what we are certainly trying to put forward in this

legislation, and I believe we are putting it forward. It is my opinion

that the suggestion would create a situation where it is possible to

have a very narrow definition of successorship. We are trying to ensure

the discernible continuity concept and the concept that a business is

made up of much more than only a specific part of it, before the

determination is made that successorship should apply.

MR. SIHOTA :

I appreciate this debate, and I would like to find out where my

thinking is wrong so that I can.... Perhaps this debate won't matter to

99 percent of the people, but it will to the people who are going to

interpret this section. I would like to find out where my

interpretation of it is wrong. If it happens that one day I end up

dealing with the Labour Relations Board on this, and I still don't

quite understand what.... I understand the minister's intent, and I can

understand what the minister is attempting to do, but the intent and

that attempt do not equal what appears here in the section.

The

minister gave the example of a radio station. It's true that no one

wants to impede the ability of a radio station to sell a microphone,

and clearly this legislation won't do that.

[Mr. Pelton in the chair.]

On the other hand, if a radio station chose to sell its.... Let's say a radio station had two production studios and

[ Page 1610 ]

wanted

to sell one facility that it had for producing advertisements to

another company, and so it sold off the control room, the microphone

and the employee who did that work — the employee went along with the

sale. That's probably the wrong way of framing the example, but if it

sold off that physical component and the employee was engaged again by

the new employer, in my mind that would be a situation where a portion

of the radio station was sold off — a part of it, if I can use the

language of the old act — and the bulk of the radio station remained in

the hands of the original owner. In other words, the other studio,

which does the broadcasting, the records and the tapes, and has the

newsroom, the reception area and all that kind of stuff, would

remain....

So once again, you've got a portion of it sold.

I like to think that the minister and I would agree that if it was

unionized and if that employee was unionized, much like the bakery

example, the successor rights should follow. If I'm correct on that

assumption, to use the minister's own example, you wouldn't be captured

by this section. It may be a discernible part, but it's not a

substantial part. You would avoid the successor rights. If you started

to sell off different components of it one by one, and those components

are not substantial — although all of them added up as one would sell

off the enterprise, much as in the example of the museum or the

planetarium that the member for North Island (Mr. Gabelmann) was

referring to earlier on — you could essentially deunionize those

workers by selling components of it.

[12:00]

If the bakery principle — if I can put it that way — is still the

principle, and the minister sticks to that principle, then clearly he

is saying that he wants those successor rights to pass. As I said

earlier on, I don't want to impede the sale of that; but supposedly

whoever buys it knows that it's going to be a unionized studio. So once

again, in that type of instance, the clause would not fulfil the intent

of the minister as he has indicated it. Or am I wrong? Could the

minister explain to me where that thinking is off base, because I don't

see how that's possibly a "substantial part of it." Yet I'm assuming

here that the minister will agree with me that the successor rights

ought to apply much as they did in the bakery case. Perhaps he could

clarify that for me.

HON. L. HANSON : I guess we

can go on with these hypothetical cases forever and have differences of

opinion as to what the

interpretations will be as the cases unfold

before the IRC. I think that cases determined by the IRC will be

determined on the facts and in the circumstances. I guess that the

radio station he's talking about and the control room.... It would seem

to me very difficult for a radio station — and I don't know much about

radio stations — to operate without a control room, and if they did

sell it, they'd probably get another one and still be in business, and

all of those people who had a contract would continue.

can go on with these hypothetical situations forever. I believe the

member opposite was suggesting "discernible or substantial." I guess

there would be a concern — and that's why I oppose putting it into the

bill — that there could be an

interpretation that certification should

follow mechanically from disposal of a minor part of a business. We'll

get into an argument about "minor" and all of the other things.

"Discernible" could be construed as meaning perceptible. In other

words, I think there could be a decision that a trivial part of a

business was sold and that certification should follow, and what I've

started to say, or what I've said ever since we started this

discussion, is that in the cases where there is a discernible

continuity — and the bakery suggestion was raised — I think that should

be caught, and I think it will be caught.

We can go on

arguing these things by

interpretation, I guess, forever — hypothetical

cases and the others. The final test will be that the Industrial

Relations Council will make determinations based on the legislation and

based on the facts of the case. I sincerely believe — and I've spent a

lot of time studying it and thinking about it — that those situations

would be determined fairly and honestly, and that the bargaining rights

of the individuals would not be impeded.

MR. CLARK :

I just have one question for the minister. I'm not a lawyer, so I want

to be blunt about this. To bring it back to the bakery case, because I

think it's very important, what we're getting from the minister — I

think this is the way it should be.... What I'd like him to say, if

it's possible, and I hope he agrees, is that it is your intent as the

drafter of the legislation, as the author of the legislation, that you

believe that if a bakery is sold or spun off to a non-union sector, you

think — it's your intention — that this legislation would not allow

that; and if at some future date it does allow it, you'll change the

law to ensure that successorship is captured. In other words, they

cannot get out of collective bargaining by spinning off the bakery to a

non-union company?

HON. L. HANSON : Mr. Chairman,

first of all, as the IRC does get into action, government has the

responsibility of monitoring those actions, and we will monitor the

legislation that we put in place for that board or tribunal to

adjudicate. Any government that's responsible.... I'm not going to tell

you what future policy is, because who knows what future policy is. But

we have legislation that, as you say, was drafted; there is an intent

behind that legislation. You say that I say that I think that's what's

happened. I believe that that's what will happen. I don't think that

there is anyone sitting here, legally qualified or not, who is going to

say that's what is going to happen. They're going to say that that's

what they think is going to happen because of the words that are before

it.

I have mentioned, I guess a number of times, that in

the case of the bakery — and we get off on these hypothetical things

again — I think that that will be captured, and I do think it and I

believe it.

MR. CLARK : Do you want it to?

HON. L. HANSON :

Yes. But I say to you that I want to know all of the facts of the case.

Instead of taking a very hypothetical situation...explain everything

before we get into that. Again, I'm not a judge or am not commissioner

of the council or a member of the council, nor do the people come to my

office to get decisions as a result of this legislation. They go to the

Industrial Relations Council, and there will be legal jurisprudence

develop from this legislation. I believe that that's the right way and

the way it should be.

MR. WILLIAMS : Mr. Chairman,

I'd like to reflect on an example, say, such as the privatizing of

parts of B.C. Hydro, which certainly might be contemplated by this

administration. I guess anything might be contemplated by this

administration.

[ Page 1611 ]

There

are smaller elements of that operation that might be looked at in terms

of spinning off and privatizing. One, for example, might be the Hydro

railway. B.C. Hydro runs a railway operation in the lower mainland,

essentially in the inner part of the lower mainland, that's significant

in terms of freight operations, and leases some rights-of-way and has

some rights-of-way of its own. But in terms of Hydro's operations it's

not significant; it's very modest relative to the entire Hydro

operation.

Maybe you could advise us how you see that,

then, in terms of the successor rights, in terms of an entity such as

that. It's terribly important, I think especially in this area of

privatizing, because you can come up with numbers in terms of an

appraisal of a business, in terms of coming up with a value for an

operating business, considering its assets and all the rest of it, and

you'll at least get a range of value that's reasonably consistent. All

of that assumes that you're paying labour on the current basis. That's

what the appraisal would be based on. As soon as you're able to

deunionize the company, then you've shifted a very significant chunk of

assets — or at least value — to capital from labour. So you change the

capitalized value of these assets by down-pricing labour, which would

happen under deunionization or the lack of successor rights.

There

are all kinds of examples out there in the private sector where, if

they get rid of the union, the capital value of the business is

significantly higher. There's simply no question about it; the examples

abound. I can see a pretty neat scenario in terms of friends of

government interested in picking up chunks of Crown corporations where

they might acquire the small spinoff assets on the basis of some

reasonable appraisal. But once they get rid of the union, they've maybe

increased the value of the company by 25, 30, 50 percent, depending on

how labour costs were as part of that organization. That would be a

huge windfall to the holders of equity or capital. It would be

unreasonable and unjustified relative to what they paid for getting

that former public asset.

Maybe the minister could comment on that.

MR. JANSEN :

Regarding this particular section, the successor rights, we keep on

talking about the concept of deunionization. I'm not sure where the

members opposite find those words. We're talking about the sale of the

business or a substantial part of that business. We keep hearing little

scenarios and little examples floated to the minister requesting his

opinion on certain aspects of that, and what his decision would be.

have, through this legislation, established an Industrial Relations

Council that will adjudicate on these issues, on these questions. They

will apply fairness and equity. For some reason, the members opposite

feel that this council will be weighted and its decisions will not

reflect the best interests of all the parties. What we're suggesting is

that indeed this Industrial Relations Council looks at all the issues

and determines fairly whether or not there has been an attempt to evade

the collective bargaining process. That's inherent in

section

Section 29 says that an "attempt to evade collective bargaining

obligations under this act" will be prevented, precluded. But we're

talking about the sale of a business or a substantial part of it, which

is where the successorship would happen.

We've had

situations in the past where a bulldozer was sold, or a piece of

equipment of a particular business, and questions were raised whether

or not successorship should apply. It could be that that particular

piece of equipment will be sold to another union company. It's not a

case of just going from union to non-union. They keep on raising this

question as though it's a deunionization type of concept, and indeed it

is not. If the members opposite would get out of their fantasy world

sometimes and go to the real world, see how things are done, they would

see where Ritchie Bros. have their auctions — or other auctions of a

similar nature — and could look at this kind of transaction happening

on a daily basis. We are talking about where the sale of a business or

a substantial part of it would have successor rights established. It's

not the ancillary parts or the small parts that have this type of

application, but it becomes the integrity of that business. Where that

business or the essence of that business is transferred, then indeed

the successorship follows.

So I have some difficulty, first

of all, with some of the statements that members opposite make in

regard to various examples. If the minister would comment, I think

that's a job for the Industrial Relations Council. Indeed, we have

structured it for that reason. The members opposite feel that that is

not the appropriate way to go, but I would submit to you that we should

perhaps allow that council to work. We should perhaps give it a fair

opportunity to succeed. The various disputes or things that come before

that council would be determined by them, considering fairness and

equity, and considering indeed if there has been a deliberate attempt —

or an attempt — to evade the collective bargaining obligations under

this act.

[12:15]

MR. SIHOTA : I don't buy any of that drivel, Mr. Chairman.

MR. CHAIRMAN : That's an unparliamentary comment.

MR. SIHOTA : My apologies; I withdraw that. But I certainly don't buy any of the comments that were just made.

keep on hearing this case of the infamous bulldozer that was sold, and

because of it a company was unionized. I would like to hear more about

that case. Does the minister have the case? Which labour board decision

was it? On the sale of one bulldozer, the operator, etc. was unionized

— is that what the member is saying?

Clearly, if the

essence of the business was sold.... The member seems to agree that if

the essence is sold, succession should attach. In that instance, if the

bulldozer was deemed to be the essence of the company, then clearly I

agree with the member that the successor rights should pass. But he

can't on one hand say that on the sale of one asset.... I would defy

him to show me one decision of the Labour Relations Board where, on the

basis of the sale of a single asset, one Caterpillar among a hundred in

an operation, successorship applied.

It is always the

phantom case that is being raised by the other side: the phantom

situation where, at some point, something happened. It is more rumour

and gossip and innuendo than it is truth and fact. I invite the member

for Chilliwack (Mr. Jansen) to prove me wrong. Cite me a case; show me

a labour board decision where that happened, and I will be the first

person to stand up and say: "Yes, the member is right and I was wrong."

I'm putting my neck on the line; I am simply asking the member to do

the same.

It is absolutely incredible to hear these types of instances cited over and over again. We get them all the time. We get

[ Page 1612 ]

this

doubletalk. On one hand, they are concerned about wanting to make sure

that you can pass on the asset in an unfettered way. I am telling you,

in today's commercial world, I don't think anybody has any hang-ups

about passing on assets. That can go on in an unfettered way. But the

other half of the doubletalk is to say that if there is a contractual

obligation that attaches to that sale of the asset — a contractual

obligation in a collective bargaining agreement — and if that asset is

the essence of the business, then of course the successor rights should

flow. That is the current law; so what are you trying to change?

Don't

try to put up cases before this House in justification when those cases

don't exist. It is a weak and misleading argument to use the bulldozer

argument to bulldoze your way through this legislation. It is simply

not true. Prove us wrong; give us a case.

Then when we talk

about "substantial part" and the change in wording, we have the

minister stand up and say: "No, it doesn't have to be a substantial

part. I don't want to run through all the examples of radio stations

and grocery stores again, but no, it doesn't have to be a substantial

part." But the legislation says it is a substantial part. It is again

doublespeak.

What is your intent, and what are you trying

to achieve through the legislation? If your expressed intent is one

thing, and if the legislation, reasonably put — and I am not trying to

stretch it — invites a conclusion contrary to the intent, then you'd

better change the legislation to bring it in line with your intent, or

you'd better come out honestly and say it isn't your intent. Don't

doubletalk and try to have it both ways.

I understand that

the member who spoke before me had to give us a commercial break while

the minister went out for his smoke. I don't mind that. But if we want

to have reasonable and rational debate in this House, then let's have

it on some solid factual grounds, not on some facts that don't exist.

Those

are my comments. I have some further questions to the minister on part

of it, "substantial" and all of that. I am not going to stop until I

get some answers. But I know that the second member for Vancouver East

was pursuing a line of questioning, and I will allow him to continue to

do that before I start mine again.

MR. REE : An introduction, Mr. Chairman?

Leave granted.

MR. REE :

Mr. Chairman, I would like this House to welcome the 5,000 to 6,000

people who are on the legislative precincts today in support of the

three bills.

MR. GABELMANN : Mr. Chairman, I, too, would like to have this side of the House welcome the few hundred people out there.

MR. JANSEN :

Mr. Chairman, on

section 29, the member who spoke previously regarding

reasonableness and factual discussion.... That's indeed what we're

trying to present in this House. We've been listening for a long time

to: "If this set of circumstances apply, what is the solution? If this

particular thing happens, what is the answer? If we present this

particular set of circumstances, what will evolve from the solution to

this particular situation?" We are talking about a factual part and

things that happen in the real world.

We're talking about the sale of a business or a substantial part of it.

Let's

use an example — you talk about examples — the Surrey Co-op, a

well-known firm in the Fraser Valley which went bankrupt, and the

successorship still applies to that business. The thing is, if a

forklift of that particular operation were sold, that is a part of that

business, and there would be a question raised whether or not that

should then compel successorship status to the person who bought it.

Perhaps we're using an example that's very small, but it's an example

that I think we're trying to produce. What we're trying to say is that

the Surrey co-op situation has successorship applying to it. But if a

very small part of that organization were sold, then it shouldn't have

successorship, apply to it.

This

section very clearly says

that where a business.... It could be through its share structure, it

could be through its asset structure. I have been in public practice,

Mr. Chairman, for a number of years and I know the situation in regard

to the sales of businesses. What we're trying to do here is determine

whether or not there is an attempt to change or transfer the business,

or a substantial part of it. There are a number of ways that can be

done. We're suggesting, to clarify that, that if there's a deliberate

attempt or an attempt to evade the collective bargaining obligations

under the act, then the Industrial Relations Council will adjudicate in

that particular situation.

I'm not sure where the members

opposite are coming from in regard to saying that they have difficulty

when we're making it a little more finite, when we're indicating the

essence of the business, or a substantial part of it — in other words,

the essence — is being transferred. I don't know what we have to say

here, members opposite, to get that message across to you. What do we

have to do? Do we have to keep presenting little examples and say given

this little example, this is where that

section would apply? We're

talking about legislation that, in my opinion and that of most of the

people of this province, is clear. It's reasonable legislation. It's

legislation that says in very simple terms that where you're trying to

evade the collective bargaining obligation, successor rights apply.

Mr.

Chairman, I don't know what we can further add to the comments of the

members opposite, other than to suggest and perhaps echo the comment

that he made previously that we should be talking about the factual

parts of this legislation rather than talking about different scenarios.

MR. SIHOTA :

The previous member talks about "Well, let's talk about facts; let's

not talk about scenarios," and he uses the example of the Surrey Co-op.

If I understand that situation correctly, and it's not one I'm familiar

with, if it was a grocery store and if it sold off one of its bakeries

as a way to avoid, let's say, bankruptcy, then the bakery is not a

substantial part of it. As I understand the member for Chilliwack (Mr.

Jansen), the bakery would not be captured by successor status; and as I

understand the minister, it would be. If the member from Chilliwack is

suggesting that it would be captured by successor status — and he says

that it would, as I take that last nod — that's not what the wording of

this

section says. It's a classic example of your stated intent not

being captured by the legislation that you have. We're dealing with

facts. We're dealing with the words that appear here in the

legislation, and we're dealing with a situation that the member's

familiar with.

[ Page 1613 ]

I'm

waiting for the Minister of Labour to return, because I want to ask him

a question which I think sort of captures this whole situation.

HON. MR. STRACHAN : Ask the question.

MR. SIHOTA :

But in the meantime I'll allow the member for Prince George South to

speak, because I understand he wants to speak. He's got his pen poised.

HON. MR. STRACHAN :

We've listened intently to this debate, Mr. Chairman, not only on this

section and other sections; and the opposition, I think, are trying to

turn this forum into what the IRC might do and have the minister

establish opinions and a forum that is discussed in the bill and would

be better addressed by other people.

I found it curious that the member referred to evidence that could be used from Hansard . I can understand his willingness to have Hansard

stated and maybe used at events. I would quote, though, from Maxwell on

interpretation of statutes, where he advises that in terms of how the

courts might view this, there is a danger that members of the House

might, in the course of debate, attempt to influence the future

interpretation of statute by expressing their own views as to its

probable effect, in the hope that these will remain uncontradicted at

the conclusion of passage through Parliament.

That's from Maxwell, On the

Interpretation of Statutes ,

hon. member. You're trained in law. It's the 12th edition, available in

the Legislative Library. I think you can read that yourself and

understand the concern you have.

MR. SIHOTA : I've read it.

HON. MR. STRACHAN : Then why do you insist on having material in the Hansard ? What about the Reader's Digest case? Well, you can answer that one as well.

any event, what the opposition appears to be attempting, Mr. Chairman,

is to have us define how long is a piece of string, or to define

everything that can be far better handled in another forum. I think

it's impractical. I think it really isn't relevant to the debate of

this bill. We on this side, and the minister in particular, establish

the intent and tell the committee the intent of the sections and the

wording that we have, but I think it's most inappropriate for any

government or any minister to further indicate to the House bow

something will be decided, particularly hypothetical examples, many of

which we've seen in the last days and weeks.

MR. SIHOTA : That was a very clever attempt by the member for Prince George South, but it's too bad he didn't read on in Maxwell.

Interjection.

MR. SIHOTA :

Okay. I guess someone in the member's research department didn't read

on, and they unfortunately put the minister in a very difficult

position. I'll be quick to point out that that provision in Maxwell

talks about the utilization of Hansard in courts. And it's true; I'm the first person to admit that you can't use Hansard

in courts, for a lot of reasons. On the other hand, you can use it in

front of the Labour Relations Board, and that's also a well-accepted

practice in jurisprudence. The comments that we've been making with

respect to this

section and all the other provisions in this awful

legislation relate to being able to use the comments in Hansard

in front of the Industrial Relations Council, should this legislation,

as awful as it is, ever pass. I am sure the member for Prince George

hopes it will pass sooner than later.

AN HON. MEMBER : In August.

MR. SIHOTA : In August.

Your researchers, I am sorry to say, Mr. Minister, did a bad job. You can use Hansard in front of a tribunal such as the Industrial Relations Council, but you can't use it in front of the courts.

[12:30]

MR. LOVICK : Fire him. This time they have cause.

Interjection.

MR. SIHOTA : I'm glad the minister is.... As the member says, perhaps the researcher can be fired because you now have cause.

The

member for Chilliwack talked about the bankruptcy situation, and I just

wanted to quote something from the continuing legal education materials

on bankruptcy, but now that the minister is back I won't deal with

bankruptcy. I could, but I'd rather stick with the main line. Hopefully

the minister was not attending the seditious rally that's going on

outside — a rally, I must say, without permit. It's too bad....

MR. CHAIRMAN : Hon. members, I think it would be kind of neat if we could get back to

section 29 as amended.

MR. SIHOTA :

Okay, we will. The minister yesterday talked about assets not being the

only determination, or not wanting that to be the only determination,

with respect to successor application; hence the removal of the

phraseology that dealt with assets. If I understood the minister

correctly yesterday, he was saying that what he wanted to see was that

there would be a recognizable continuity in the business, not simply a

sale of assets, to invite successor status. I take it that that's what

the minister was saying. I could go back and quote him, but basically

the minister was saying that assets alone ought not to be the

determinant of whether or not successorship should apply, but assets in

consideration of all of the other circumstances — discernible business

continuity — would be the overriding factor. Once again, I was

surprised that the minister said that, because I was trying to make the

argument that assets never were the sole factor resulting in an

automatic or, as the minister puts it, mechanical approval.

Yesterday I didn't get a chance to quote this, and I want to put it on the record. It's an extract from Canadian Labour Law

by Adams — it's the 1985 edition, which came out about a year ago —

where Adams reviews the various successor rights provisions in various

jurisdictions. In dealing with the British Columbia

section — it's just

short; it's only about half a page — he says.... I want the minister to

listen carefully to this quote, because as I interpret what Adams

says.... What Adams says here is, I think, bang on to what the minister

provided me with in his statement as to the intent of the changes. I

think it hammers home the point, as it did with "substantial," that

what your intent is not captured by the section.

[ Page 1614 ]

But

I thought, instead of hearing it from me and questioning my legal

abilities, we'd go to a scholar who knows the stuff at least better

than I do. Here is what he says, and I think it's an interesting....

I'm not taking it out of context; I'm just reading the paragraph:

"The

British Columbia board now sees the appropriate issue as whether there

is an asset transfer, coupled with a recognizable continuity in the

business. The transfer of a substantial part of the assets of a

business to another employer will not result in the automatic

application of

section 53 of the British Columbia Labour Code. A

successorship will be found if the substantial asset transfer is

effected while a 'discernible continuity' in the business is

maintained, but there will be no successorship if there is a

'qualitative transformation' of the business, despite the transfer of a

substantial part of the assets."

That's the law in British Columbia, as it sits under the current wording of

section 53.

Like

I say, it is founded on Adams, and he cites the cases that he

considered in coming to that conclusion. They consist of the Canadian

Pacific case, 78 CLLC , 16;

the Durham Transport case, which can also be found in the labour

reports; the Wholesale Delivery Service case; and the Hydro-Quebec

International case. They are all cases that he used to reinforce that

finding. They are all cases that flow out of British Columbia, with the

exception of the latter, the Hydro-Quebec case.

I want to

ask the minister if he could explain to me, given that this was indeed

the law under

section 53, and given what he was saying yesterday in

terms of what he intended to achieve through these amendments, what is

the difference. Why make the amendment if what you were saying

yesterday is bang on to what Adams says is a law under the current

section 53? Why the change, Mr. Minister? Or are you saying that you

were wrong in your expression of intent?

HON. L. HANSON :

I heard the member opposite suggest that I had some questions as to his

legal abilities. I certainly have no questions at all about his legal

abilities. As a matter of fact, I respect them very much, Mr. Chairman.

As I understand it, George Adams was a former chairman of the Labour

Relations Board, or was he a member?

MR. SIHOTA : Ontario.

HON. L. HANSON : Oh, Ontario.

Certainly

in his

interpretation.... I wouldn't have any difficulty with that.

Again, I go back to the intent of the legislation. There is a concern,

and I have that concern, that the "or part" which we have removed, I

guess, effectively, is the change. That can be interpreted in too

narrow a confine. I go back to the intent, as I have stressed many

times, that there are a number of things that make up a business. It

isn't a part, but it could be a part. It depends on the relationship of

that part to the entire business, and how the board determines, as the

facts are presented to it, what they see as continuity, and whether the

essence of the business is in fact being sold. We think the wording

that is there now is good wording. The old wording — "business or

part," which we've removed — may allow a narrow determination that we

don't philosophically agree with. I'm not going to get into the numbers

of cases and the bulldozer, and all of those things. We're talking

about an intent, a philosophy.

As I've said before, there

isn't anyone, including my opposition member, who has all of those

legal abilities to determine exactly what is going to happen from

something. That's why he is able to practise his profession and appear

before a judge and have those

interpretations and make his arguments as

to what he feels the

interpretation of it should be.

Again,

as I've said, I've stated the intent of the legislation a number of

times. I've spent a lot of time discussing that intent and getting

various opinions and so on, and I believe the legislation that we have

there now will in fact protect the bargaining rights that people have

acquired through the democratic bargaining process. Where there are

situations where successorship should not be determined under the new

IRC and the new

section that we're proposing here, we feel that there

will be a fair determination and that those protections will be in

place.

MR. CLARK : Once again the minister is not

giving us a clear indication of what he wants. Unlike what the House

Leader said, it's our responsibility in this chamber to say what we

want the legislation to do. It's up to the IRC to say how it's

interpreted.

I find this

section one of the most offensive

in the whole very offensive bill, and I say that.... I'm glad the

Minister of Tourism (Hon. Mr. Reid) is here, because I'm sure he

probably had a hand in this particular clause, because it's of benefit

to many of his friends.

MR. CHAIRMAN : That comment, hon. member, was hardly appropriate to this debate.

MR. CLARK : Why is it not appropriate? What this clause says, Mr. Chairman....

Interjections.

MR. CHAIRMAN : Order, please. Please go ahead.

MR. CLARK :

What this clause says, Mr. Chairman, is that the rights of capital take

precedence over the rights of workers. It says that people who own

property can dispose of their assets and make money, but the rights of

workers who work for that company no longer carry any weight. Someone

can work for a corporation for 30 years, and you can spin off a

company, sell your assets and make money at it. That is made legal by

this change in this clause. It allows a corporation to sell off its

assets, but it says absolutely nothing about the collective rights of

workers who have worked for that corporation. So workers could spend

their lifetime working for a corporation, and the collective agreement

could be circumvented by this kind of language.

This

section is violent. It does violence to the rights of workers. The

reason for the original successor rights language was to say that the

rights of workers to organize collectively could not be circumvented by

selling off or spinning off to the non-union sector. This makes it wide

open, particularly in construction. This, combined with

section 25,

means the deunionization of the construction industry, particularly

because the capital and assets of construction work are the thing that

is traded, that is circumvented. It makes it very easy for

double-breasting, as in a previous clause. This makes it easier to get

around the collective agreement. We are going to see massive moves

towards

[ Page 1615 ]

getting out of collective agreements because of these kinds of changes.

The

successorship language in the previous Code had been interpreted by the

Labour Relations Board in a very weak manner. Already we have seen

decision after decision of the board — and I was part of some — allow

corporations to get around their collective agreement under the old

language. Here we have changes to that that make it even easier. I want

to read to you how successorship was interpreted in 1985 under the old

language:

"When considering a successorship

application, the board will determine whether a business or a part of a

business has been transferred. A business undertaking includes the

physical assets, tools and equipment, management and bargaining unit

personnel, goodwill and other intangibles. The importance of each of

these varies, depending on the essential nature of the business.

"To

determine if a business or part of it has been transferred, the board

will undertake a multifaceted approach, reviewing the extent to which

these elements have moved from the predecessor to the purported

successor. In doing so, the board will examine the numerous facets that

compose the particular undertaking, balancing those factors which

evince a successorship against those which do not, in an effort to

determine whether there has been a continuation of the business or its

assets such that collective bargaining rights should be preserved."

That's

the language. This is the way the minister is interpreting the new

language. Well, if that's the case, why did they make any changes? They

made changes to allow their friends, the employers, to get around their

collective agreements. There is no question about it. We see it time

and time again from the comments, from the member for Chilliwack (Mr.

Jansen) and other members on that side who don't understand that

collective bargaining rights can't be or should not be allowed to be

abrogated because the employer decides to make more money by spinning

it off to make it non-union, to get around the legitimate rights of

workers to organize in this province. That's what this legislation

does, clause after clause after clause.

[12:45]

This

section is violent in terms of what it does to the workers'

rights in this province. Very strongly about that. I want to go through

a case with the minister, the Redskin Cedar case, which is what this

clause is. Who was the lawyer? Peter Gall for the employer. He lost his

case, so he went to his friends in government and they changed the law.

That's what happened.

MR. SIHOTA : Was it before or after the hearing?

MR. CLARK :

May 6, 1986. No, sorry. The first one, August 26, 1985, an application

to declare Capital — isn't that a coincidence — Cedar Ltd. the

successor employer to Redskin Cedar. The application was dismissed. The

union lost the original case because the panel did not find on the

evidence that Redskin sold its business or any discernible part of its

business to Capital. Redskin did not transfer its business, but there

was a transfer of assets. Capital was a parallel business and not a

continuation of the old business of Redskin. While Capital purchased a

substantial part of the equipment, it did not purchase a substantial

part of the entire assets of Redskin, nor did it purchase the goodwill,

customer lists, etc. The union said Capital purchased virtually all the

equipment and assets of Redskin Cedar, and then laid everybody off and

hired all non-union. The union applied for successorship rights and

said: "They purchased the business, they purchased the assets; they've

just changed the employees and they've thrown out of work members of

that union who'd worked there for 20 and 30 years. That's not allowed."

And they went to the labour board and applied for successorship rights.

The labour board, using the old language, said the union is wrong; you

can sell assets. But the union appealed and, in a rare case, the union

won the appeal.

On May 6, 1986, the union appealed. The

union applied for reconsideration of a board decision that Capital was

not a successor employer to Redskin. The reconsideration panel set

aside the decision of the original panel on the grounds that it erred

in law and policy by failing to approach the analysis of the nature of

Redskin's business, and the question of whether or not there was a

discernible continuity between the business and the business being

carried out by Capital from a labour relations perspective. The

reconsideration panel substituted for the decision of the original

panel in its own decision that there was a discernible continuity, and

that assets were sold, and assets made up a part of that business.

the board overturned the original decision that Peter Gall won, because

it said — and that was the chairman, John Kinzie — that assets were a

critical component, and they were doing the same business. Would the

minister tell the House now if under this new language the

reconsideration would be successful? In other words — and this act is

retroactive, so....

MR. JANSEN : Come on, be real.

MR. CLARK :

What do you mean, be real? The fact is that this is the reason for this

amendment. You be real. This is the reason for the amendment. The fact

is that the reason for this amendment was to support Peter Gall and to

change the reconsideration that the board ruled. That's very clear The

facts are absolutely on point on this question. There's no other

explanation for these changes.

MR. LOVICK : There are other cases just as well.

MR. CLARK :

There are all kinds of cases, but this particular one is exactly the

same. Now it says that part of the business no longer constitutes...and

it removes the test of assets as a major test in terms of determining

it. That was the reason why the board overturned it.

Could

the minister tell the House whether this case would have succeeded now

or would have ended up with the same decision under this language? Or

is it the intent of the minister that this case would still be

adjudicated the same way under this new language?

HON. MR. MICHAEL :

Mr. Chairman, I'd like to just make a few comments about this

particular section, because I think it's probably one of the more

important sections we'll be dealing with on Bill 19. I think it's long

overdue. I know of numbers of instances in this province where innocent

third parties, the owners of buildings, have leased successfully to

large businesses, particularly in the retail grocery area. The person

who was leasing the premises decided to close their facility, for

whatever reason; but to close shop, sell out and

[ Page 1616 ]

clean

the shelves. I suggest that the current legislation. which requires and

provides for successorship, is indeed unfair to that innocent third

party, the owner of the building. who is not completely free to lease

his premises to whom he chooses. To me, it's unfair to have a situation

where that third party, the owner of the building, who had nothing to

do with the application for certification, nothing to do with the

collective bargaining process, nothing to do with what went on at the

bargaining table, is put in a position where he or she cannot lease the

premises to whom he or she pleases.

I suggest, Mr.

Chairman, that this

section is long overdue and needs cleaning up. I

have seen other instances in the province dealing with equipment.

People with 10, 12, 15, 20 pieces of equipment who make a free choice

to reduce the size of their operations because of the marketplace —

choosing to enter retirement, whatever reason it might be — would like

to dispose of their assets, and to think that they can't go to the free

marketplace.... Whether it be the auction yards or the free marketplace

and advertising through the regular channels, they are unable to

dispose of those articles one by one in a democratic, free-choice

manner without the fear of that certification and collective agreement

following that item of equipment. To me, it's fallacy. Changes are long

overdue, and I wish to compliment the Minister of Labour for the

initiative he has taken in cleaning up this situation.

MR. CLARK :

Well, aside from the fact that the Minister of Highways has completely

misrepresented the law, he has made it very clear in terms of the

philosophy of the government that the owner's right to lease to

whomever he wants takes precedence over the rights of the workers in

that previous operation. That's what he said. He wants the owner of the

building or the store to be able to sell to whomever he wants and to

make as much money as he wants. That right is more important than his

20, 30 or 100 or so employees who worked previously for that operation

and gave their working lives to make profit for that previous owner.

It's more important for the owner of that business to be able to sell

it to whomever he wants and to make as much money as he wants than it

is for the workers in that operation and the collective rights of those

workers.... That's exactly the kind of attitude we've seen from that

side consistently, and this section....

Interjections.

MR. CHAIRMAN : Order, please, hon. members. Would the speaker please address the Chair.

MR. CLARK :

Mr. Chairman, that's exactly the kind of philosophy we've come to

expect from this government — I wish the Minister of Tourism (Hon. Mr.

Reid) would get up, because he could say it more eloquently than the

Minister of Highways — on the need, the primacy, of owners' rights over

the legitimate rights of workers.

That's what this clause

does: it allows corporations to evade their collective agreement; it

allows them to get more money, because if the collective agreement is

not attached to the business, and the value of the business goes up,