• ISSN 0542-5492 Fourth Session - Thirty-First Legislature of the Legislative Assembly of Manitoba DEBATES and PROCEEDINGS 29 Elizabeth 11 Published under the authority of The Honourable Harry E. Graham Speaker VOL. XXVlll No. 134 - 8:00 p.m., TUESDAY, 29 JULY, 1980 Printed by The Office of The Queen's Printer, Province of Manitoba

MANITOBA LEGISLATIVE ASSEMBLY Thirty - First Legislature Members, Constituen cies and Political Affiliation Name ADAM, A. R. (Pete) ANDERSON, Bob BANMAN, Hon. Robert (Bob) BARROW, Tom BLAKE, David BOSTROM, Harvey BOYCE, J. R. (Bud) BROWN, Arnold CHERNIACK, Q.C., Saul CORRIN, Brian COSENS, Hon. Keith A. COWAN, Jay CRAIK, Hon. Donald W. DESJARDINS, Laurent L. DOERN, Russell DOMINO, Len DOWNEY, Hon. Jim DRIEDGER, Albert EINARSON, Henry J. ENNS, Hon. Harry J. EVANS, Leonard S. FERGUSON, James R. FILMON, Gary FOX, Peter GALBRAITH, Jim GOURLAY, Hon. Doug GRAHAM, Hon. Harry E.

GREEN, Q.C., Sidney HANUSCHAK, Ben HYDE, Lloyd G. JENKINS, William JOHNSTON, Hon. J. Frank JORGENSON, Hon. Warner H. KOVNATS, Abe L VON, Hon. Sterling R. MacMASTER, Hon. Ken MALINOWSKI, Donald McBRVDE, Ronald McGILL, Hon. Edward McGREGOR, Morris McKENZIE, J. Wally MERCIER, Q.C., Hon. Gerald W. J. MILLER, Saul A. MINAKER, Hon. George ORCHARD, Hon. Donald PARASIUK, Wilson PAWLEY, Q.C., Howard PRICE, Hon. Norma RAN$0M, Hon. Brian SCtfROEDER, Vic SHERMAN, Hon. L. R. (Bud) STEEN, Warren URUSKI, Billie USKIW, Samuel WALDING, D. James WESTBURY, June WILSON, Robert G. Constituency Ste.

Rose Springfield La Verendrye Flin Flon Minnedosa Rupertsland Winnipeg Centre Rhineland St. Johns Wellington Gimli Churchill Riel St. Boniface Elmwood St. Matthews Arthur Emerson Rock lake Lakeside Brandon East Gladstone River Heights Kildonan Dauphin Swan River Birtle-Russell lnkster Burrows Portage la Prairie Logan Sturgeon Creek Morris Radisson Charleswood Thompson Point Douglas The Pas Brandon West Virden Roblin Osborne Seven Oaks St. James Pembina Transcona Selkirk Assiniboia Souris-Killarney Rossmere Fort Garry Crescentwood St. George Lac du Bonnet St.

Vital Fort Rouge Wolseley Party NOP PC PC NOP PC NOP NOP PC NOP NOP PC NOP PC NOP NOP PC PC PC PC PC NOP PC PC NDP PC PC PC Ind NOP PC NOP PC PC PC PC PC NOP NOP PC PC PC PC NOP PC PC NOP NOP PC PC NOP PC PC NOP NOP NOP Lib PC

LEGISLATIVE ASSEMBLY OF MANITOBA Tuesday, 29 July, 1980 Time - 8:00 p.m. OPENING PRAYER by Mr. Speaker. MR. SPEAKER, Hon. Harry E. Graham (Birtle­ Russell): Presenting Petitions . . . Reading and Receivi ng Pe titions . . . Pre sent ing Reports by Standing and Special Commi ttees . Min isterial Statements and Tabling of Reports . . Notices of Motion . . . Introduction of Bills . . . ORAL QUESTIONS MR. SPEAKER: The Honourable Member for St. Johns. MR. SAUL CHERNIACK: Mr.

Speaker, I would like to ask the Honour able Attorney-General whether Manitoba presented position papers of the Ju ly negotiations on the constitution and, if so, were they made public? HON. GERALD W. J. MERCIER (Osborne): Mr . Speaker, there was only one position paper that was made public, that being one with respect to family law. MR. CHERNIACK: Mr.

Speaker, I'd like to ask the Honourable Attorney-General that in view of the report to the effect that the federal Conservative caucus has the federal and provincial position papers used during the negotiations, whether the Minister is aware of any manner in which they have been made available to

partie s other than those who have actually participated at the conferences. MR. MERCIER: Mr. Speaker, I have not heard that report and I am not aware of any way in which the party would have obtained provincial position papers. MR. CHERNIACK: I thank the Honourable Minister. I am wondering if he and/or the First Minister would consider whether or not the position papers would be available to the committee which will be appointe d after tonight to deal with the entire question intersessionally. MR. MERCIER: Mr.

Speaker, I indicated earlier on in the session to the Ho nourable Leader of the Opposition that we will be preparing papers for the members of the committee for their deliberations and which will also be available to the public. MR. CHERNIACK: Just one final question, would the Honourable Minister undertake to see to it that copies of these documents would be sent to all ML As, wherever they happen to be at the time? MR. MERCIER: Perhaps what we could do, Mr. Sp eaker, is no t only make them available to members of the committee but to the caucus rooms and to the independent members. MR.

SPEAKER: The Ho nourable Me mb er for lnkster. MR. SIDNEY GREEN: Mr. Speaker, I would like to direct a question to the Honourable Minister of Muni cipal Affairs, relative to my question earlier today as to whether or not he gave Ministerial authority for a legal residential su bdivison in the Local Government District of Armstrong within one mile of a pig ranch? MR. SPEAKER: The Honourable Min ister of Mu nicipal Affairs. HON. DOUG GOURLAY (Swan River): Mr. Speaker, there was a subdivision approved in the area of Fraserwood. MR. GREEN: Mr.

Speaker, could I determine from the Minister whether that subdivision was approved by himself and whether it is not a fact that the chief planning rec ommendation was agains t the subdivision, and also the agricultural representative being against this subdivision, or either one of the two? MR. GOURLAY: Mr. Speaker, I would have to check further on the specific details on that question. MR. GREEN: Mr.

Speaker, I wonder whether, in the event tha t we do not have another legislative question period, whether the Minister will undertake to see to it that the questions that I asked this afternoon and the ones this evening are conveyed to me by some form of writing, which is a practice which we employed in the past, and which I would ask whether the Minister would furnish me with that information. MR. GOURLAY: Mr. Speaker, I would be pleased to endeavour to get all the specific information that the honourable member would care to have. MR. SPEAKER: The Honourable Member for Fort Rouge. MRS. JUNE WESTBURY: Mr.

Speaker, thank you. My question is addressed to the Honourable First Minister, and I wonder if he is in a position to answer a question which the Minister of Finance took as notice last Thursday. I asked whether it could be confirme d that the province is having discussions with the official delegation of the city of Winnipeg relative to cost-sharing in a study of an electric­ powered rapid transit system. This was announc ed by Councillor Harold Piercy and I asked if we could have confirmation and also whether the study is to be completed within six months of the September date that Councillor Piercy announced.

MR. SPEAKER: The Honourable Minister of Urban Affairs. MR. MERCIER: Mr. Speaker, I did have some discussions with the official delegation of the city on 6173

Tuesday, 29 July, 1980 this question of whether or not the province would participate in the funding of such a study, in the month of June, prior to one of the council meetings. I un derstand that since then the council passed a motion in favor of asking for the study and that they will be dealing directly with the Department of Mine s and Energy with respect to that matter. That's as much information as I have about it at this time, Mr. Speaker. MRS. WESTBURY: Mr.

Speaker, in view of the fact that Councillor Piercy has been assuring the council that the money was to be forthcoming from federal and provincial governments - and I'm sorry, I addressed the question to the wrong Minister - would the Honourable Minister of Urban Affairs be willing to look into this and perhaps let me also have a reply in writing. MR. MERCIER: Yes, Mr. Speaker. ORDERS OF THE DAY REPORT ST AGE MR. SPEAKER: The Honourable Government House Leader. MR. MERCIER: Mr.

Speaker, would you call the remaining matters in this order: Bills No. 96, 7, 48, 80, 75, and then the motion in the name of the First Minister. MR. SPEAKER: We were in report stage when we quit at 5:30, we still had one amendment to hear at report stage on Bill No. 96. The Honourable Member for Elmwood. MR. RUSSELL DOERN: Mr . Sp eaker, I have decided not to proceed with that amendment. MR. SPEAKER: Shall the report of the committee on Bill No. 96, be concurred in? (Agreed) The Honourable Member for Fort Rouge. MRS. WESTBURY: Mr. Speaker, I'm sorry, at which point can I speak to the bill itself.

We've just been dealing with amendments, Mr. Speaker, I didn't want to speak to an amendment. MR. SPEAKER: Order please. If the Honourable Mem ber will just wait a second the Ho nourable Minister without Portfolio. THIRD READING BILL NO. 96 THE ELECTIONS FINANCES ACT HON. EDWARD McGILL (Brandon West,) presented, by leave, Bill No. 96, The Election Finances Act, for third reading. MOTION presented. MR. SPEAKER: The Honourable Me mber for Elmwood. MR. DOERN: Mr. Speaker, I' ll defer to my seat mate. MR. SPEAKER: The Honourable Membe r for Fort Rouge. MRS. WESTBURY: I do beg your pardon, Mr. Speaker.

I've been warning people that I'm feeling a little numb, and I' ve just proved it unfortunately to my own embarrassment. Thank you, to the Member for Elmwood as well. Mr. Speaker, I just wanted to speak briefly in connection with

Section 3 of the bill, Page 3, which calls for the elections commission, and in speaking at second reading, I objected to this on behalf of the Liberal Party. There have not been any changes, Mr. Speaker, and I just wanted to get on the record the fact tha t Se ction 3, su bsect ion (2) remains unacceptable to the Liberal Party. For this reason the commission is to be charged under the Act with the authority to regulate and police all registered political parties operating in the political process and, therefore, all parties ought to have a voice on the commission. But

Section 3, subsection (2) states that the commission shall be composed of the Chief Ele ctoral Officer, a person appoin ted by the Lieutenant- Govern or-in-Council to be Chairman of the Commission, and two persons representing each registered political party that is represented by four or more members in the Assembly. Th erefore, all registered

part ies are not represented on this policing commission, Mr. Speaker, and I really believe that they should be. They have watchdog powers over registered parties taking

part in the political process and all the elections of Manitoba. They are not limited even to overseeing the activities of those parties which have seats in the le gi slature. The y can oversee the activities of parties which have never been registered and represented in this Chamber, Mr. Speaker, and my party is suggesting, not only that this is not fair to the Liberal Party, that the Liberal Party should have representation on such a commission, but that it should have lay representation, not just political representation, Mr. Speaker. We'd really rather see it come perhaps under the Civil Service.

The Comm issio n's powers give it authori ty to regulate and prosecute any party registered under The Ele ction Fin an ces Act, and the refo re, our position is that all such parties should have an opportunity, if any parties are represented all parties should have the opportunity of being represented. Othe rwise, an analogy could be brought in to taxation without representa tion. He re we have policing without represe ntation. On behalf of my party, I want to object to that, Mr. Speaker. MR. SPEAKER: The Honour able Me mb er for ln kster. MR. GREEN: Mr.

Speaker, I, too, will be brief and leave the major remarks on this bill to be made by, I gather, the Member for Elmwood, who is willing to defer. Mr. Sp eaker, I haven 't loo ked at the ne w amendments. I looked at the Act as it was originally drawn. I find the Act offensive. I find it to be a denial of liberty. I find it to be a denial free speech. I regard 6174

Tuesday, 29 July, 1980 all of its provisions, Mr. Speaker, as being conceived in good motives, but comple tely unworkable. It's my belief, Mr. Speaker, that the new Act will not bring about, as did not the old Act, so that there be no misunderstanding, as did not the old Act bring about any more honesty or more integrity in elections, that it will not create a better situation, that it will create many many liars out of normally hone st people. I intend, Mr.

Speaker, to fight the next election as I fought in my first election; to do so honestly, with integrity, to the best of my ability, and to abide by what I consider, Mr. Speaker, to be the proper means of seeking office in a democratic society. I intend to obtain such financial support as people wish to make available to me; I intend to make such expen ditur es as are rea sonable within the circumstances and within the amount of money that is made available in donations; I intend to use such methods of public communication as are available to me. If any of these things, Mr.

Speaker, are held to be illegal by the Commission that is to oversee political parties, all they will be doing is making ille gal honesty, integrity and the best use of the democratic process. MR. SPEAKER: The Honourable Me mb er for Elmwood. MR. DOERN: Mr. Speaker, I think that this bill was one of a numbe r of examples of legislation that was hastily conceived and extremely il l-advised and damaging to the democratic system, because of the fact that it was directly related to the manner in which elections would be run in our province. It was clearly a bad bill and now we have a gutted bill.

There is little left and there is much that should have been included in the bill that was omitted. Mr. Speaker, I just wanted to allude to some of the bad provisions that were deleted in our committee discussions and deliberations. There was a section, for example, preventing a party from contributing more than a few thousand dollars, a federal party to a provincial party, or from blocking a provincial party from donating, in the case of Manitoba, more than 1, 400.00.

There was an incredible amount of red tape which would have forced political parties to spend a great deal of time writing receipts and getting involved in all sorts of bookkeeping and checks in regard to this legislation. There was a harsh penalty for nonfiling, and I have to say to the Attorney-General that he seems to operate in two extremes. On one hand, he seems to either not take action in regard to a matter, or he seems to come down with the full force of his office and has done so, I think, on a number of occasions when maybe a moderate reaction would have been in order.

He was going to, for example, bar someone from taking their seat in the Chamber if they failed to file their expenditures and income during an election. Mr. Speaker, it was only a few weeks ago or so that there was no action taken in regard to somebody who did the same. Now we suddenly go from a position of inaction into someone being barred from taking their seat if they were duly elected. We're not happy about the commission which has been set up instead of a strengthened Chief Electoral Officer. I think there are problems with that type of system.

I think it is a mistake to say that there should only be a lim itation on advertising. That remains in the legislation. The previous pattern was to limit total expenditures and I think that was a good system. It needed to be enforced. But now we only have a limitation on advertising, and although that is good and although that is central, I'm worried about thousands and thousands of dollars being spent, by parties that are flush with funds, on paid workers and on barbeques and all sorts of other celebrations and forms of election expenditure. Mr.

Speaker, I think there's a reluctance, as well, on the part of the government in reg ard to corporations. This bill will for the first time allow corporations to make donations during the electoral period, and it's clear that the government is attuned and comfortable with corporation donations. I am not and I am concerned about sizable contributions from businesses and what that may mean in terms of legislation or favour. The saving grace there is that there will have to be some disclosure.

And similarly with trust funds, it's good that there's going to be disclosure of trust funds but it is bad that that will not be retroactive and it will not be in the present or in the near futur e, because the government is still going to protect trust funds. I suppose there will be a scramble among political parties to go out, establish a trust fund and get all the money they can prior to the next election. So the 1981 election will be fought with some money in the pot in terms of trust funds.

I guess it's difficult to wean the Progressive Conservative Party away, just as it's difficult to break a baby away from the bottle. The y' re too used to recei ving donati ons from corporations and from attempting to make them disclose the fact that they are. So I am worried about that provision, Mr. Speaker, and I note the reluctance of the government to give up that source of funding or to make it more open. Mr. Speaker, there is probably one good provision in the bill, namely the income tax rebates on a provincial level.

Before there was, I think, an attempt by political parties again to launder their money through Ottawa or do something to circumvent the legislation. This will encourage people to ma ke donations and get tax rebates. My concern, however, is here again, it always tends to be people who can make considerable donations; 10 0, when you get 75 back, isn't a large donation, but it is for a working man. For somebody's who's middle -cl ass or a professional, they are, I think, accustomed to making more sizable contributions. They don't consider it unusual to buy 100 tickets to dinners, especially when you get 75 back.

But the average person, I think, is unable and unwilling to make that kind of a donation. Mr. Speaker, if Bill 95 contained a silly section, which is what the Premier said, Bill 96 was a silly bill. It has now been changed considerably because of the pressure of the New Democratic Party in the House and in the committee. I note the editorial in today's Free Pre ss which refers to legislative butchery and then lists a numbe r of acts and, in regard to Bill 96, says that it emerged from the committee stage in the same condition it would have from an office shre dder. That, I think, was an accurate comment. 6175

Tuesday, 29 July, 1980 Mr. Speaker, I will conclude my comments by saying that I don't accept the weak defences put up by the government, like the Minister of Government Services who said, well, they had problems with legislation because they are still inexperienced. He said that it wasn't the legislation per se; he's quoted in the Tribune a day ago saying it was due to inexperience. Mr. Speaker, that government has a process by which they vet legislation. Surely they have a comm ittee; surely the Mini ster make s recommendations and they have committees, then it goes through caucus and Cabinet and so on.

They obviously are fumbling the ball. They obviously are not performing well. They obviously are mismanaging the legislative program of the government. They are not businesslike in their operat ions. And for a government to say that they are still green after three years in office I think is a shattering self­ admission. A gov ernment that's led by an experienced Premier, that contains a couple of Ministers from the Roblin administration, and that has been in office for almost almost three years, I think it has shown bungling, mismanagement and inefficiency. Mr.

Speaker, I will simply conclude by saying that there is still much to be done. There is still much to be done. This is a faltering step in electoral reform. What we are essentially left with in the bill, in my judgment, is tax rebates for provincial donations and disclosure of contributions in regard to, in the future, trust funds, etc. That much is okay. What we need, however, and must move towards, is similar systems to other provinces and the federal government. Ontario has this, but they also have direct funding. Saskatchewan has some direct funding. Quebec has some direct funding.

Ottawa has a significant system whereby ther e is fundin g from the federal government. We need year- round monitoring, Mr. Speaker. We don't need it just during the election period; we need it year-round so that people don't order and donate at one time, and beat the law in that way. We need maximum expen ditures, Mr . Speaker. I simply say that we started out with a very bad and sloppy piece of legislation. Most of it has been elimi nated and now we'r e left with a couple of provisions.

I'm not enthusiastic about Bill 96 because its main fault is that it went too far in the wrong direction when we started the debate, and now it doesn't go far enough in the right direction. MR. DEPUTY SPEAKER: The Honourable Attorney­ General. MR. MERCIER: Thank you, Mr. Speaker. Just a few brief comments, Mr. Speaker. Ju st prior to the supper hour, the Member for Elmwood was speaking with respect to an amendment, and I refer to it only because it should be seen as a background to his remarks on this bill, Mr. Speaker.

He spoke against the amendment that was proposed at that time, but when he called for the Ayes and Nays, Mr. Speaker, he clearly did not have the support of his caucus and his party in the comments that he made on that particular amendment. In fact, Mr. Speaker, his caucus supported the amendment that was before the House. Mr. Speaker, it is very difficult under those circumstances to know when, if ever, to accept the comments from the Member for Elmwood as the position of his party. Mr. Speaker, I will just refer very briefly to the comments of the Member for Fort Rouge.

She refers to the fact that the Liberal Party is not represented on the Electoral Commission. Mr. Speaker, the difficulty there is how far do you go in appointing members to the Electoral Commission and how many of the various and many parties tha t exist in Ma nitoba could be represented or should be represented on that commission? That's the difficulty we had on that particular matter. The Member for lnkster made some comments on the bill and I think it should be acknowledged, first of all, that he apparently did not read the revised bill after it came from committee, Mr.

Speaker, so his comments have to be taken in that regard. One of the impo rtant items in this bill, Mr . Speaker, is the income tax benefits, and I just refer to a report that was in the Globe and Mail on Friday, June 11 , that covered a report on the number of individua l contributions that have arisen at the federal level since they have introduced tax benefits, Mr. Sp eaker. They noted tha t the Prog ressive Cons ervatives went from 6,423 individual contributors in 19 74 to 34,952 in 1979, an increase of 444 percent.

The NOP more than doubled the number of people who supported the party financially in that period, and the Liberal Party increased by 31 percent. So, Mr. Speaker, I think the fact that income tax benefits will now be available for political contributions in Manitoba will serve as a method, for every party, of broadening their base of individual support throughout the province, Mr. Speaker, and I think that's an excellent thing for the system. Thank you, Mr. Sp eaker. QUESTION put, MOTION carried. ADJOURNED DEBATE ON THIRD READING BILL NO. 7 -

AN ACT TO AMEND THE MANITOBA EVIDENCE ACT MR. DEPUTY SPEAKER: Bill No. 7,

An Act to amend The Mani toba Evidence Act , adjou rned debate on thir d reading, standing in the name of the Honourable Member for lnkster. The Honourable Member for lnkster. MR. GREEN: Mr. Sp eaker, this is a relatively important bill, although it is not something that members come into contact with on a daily basis, namely whether or not a witness is going to be asked a question concerning her or his adultery in a court case. When the bill was introduced, Mr. Speaker, I indicated that I felt that the basis of the law upon which a person was not asked to testify as to her or his adultery had some sound basis.

I indicated, Mr. Speaker, that the people who formed the law knew that the oath would only go so far. For instance, Mr. Speaker, there is a law that says that a woman cannot be called to testify against her husband. There is also a law that commun ications between a husband and wife are privileged and you cannot ask a person to testify as to such. 6176

Tuesday, 29 July, 1980 The one with regard to adultery, Mr. Speaker, I indicated that, although I wasn't there when it was formulated, it was probably formulated because the judges who first pronounced it were wise enough to see that if you asked somebody to testify about adultery, which he doesn't wish to acknowledge, that he will probably be a perjurer rather than cease to be an adulterer; that it was also a fact, Mr.

Speaker, that common decency would probably prevent a person from testifying as to her or his adultery, if it involved anothe r person who was an in nocent person, and that the testimony affecting that person would be far more damaging in the total scheme of things than would be the obtaining of that testimony. I indicated to the Minister that I would want him to give pretty good reasons as to why he would ask members of this House to reverse a position that has been the law for many many years. The Minister ind icated tha t several other ju risdictions have reversed the position and, Mr.

Speaker, I can see how that could easily happen, because some Minister proba bly got up and said tha t a law reform commission or a group of lawyers said that this should be done, he had received a recommendation, and that everybody said that it's archaic law, and therefore it was reversed. And on that basis, it would be reversed and has danger of being reversed in this Assembly. Mr.

Speaker, if it's reversed in this Assembly I want to make sure that at least the eyes and minds of the members are open to what they are doing, because the Minister didn't give any real reason as to why this should be done, except he said that other jurisdictions have done it. And then there was an appearance by a lawyer, Mr.

Speaker, before the committee that was sitting to consider the bill, and I have read what the lawyer said, and I wish to bring to the attention of this Ho use my particular disagreements with what was said and I ask the mem bers to conside r them, to conside r who is making better sense on the question before the House. The first thing that the lawyer said was that at one time adultery was considered to be a crime and was considered to be a very serious thing and therefore the person would not be asked to testify as to themselves having committed a crime.

Miss Hall then said adultery is no longer considered to be that serious. It's still a matrimonial offense admittedly, but I don't think it's viewed any more serious than any of the other matrimonial offenses such as cruelty and that type of thing, so the rationale no longer exists. In the Legislature when I first spoke on this bill, Mr. Speaker, I said that it would be easier to ask a person to testify as to a crime that they committed than to ask a person to testify as to adultery that the y ha ve committed, which, Mr. Speaker, presumably, nobody knew about.

And I asked the mem bers of this Ho use to say whether the consequ ences of admitting to a crime and the consequences of being asked questions of adultery are any less serious when the issue of adultery is in question. Mr. Speaker, the other issue that was raised was that in filiation procedures - a filiation is somebody suggesting that a man is the father of an illegitimate child - that it should only be fair that if the man is an adulterer he be asked that question. Mr. Speaker, admittedly this is a particular type of proceeding.

The woman is known, the man is known, he is accused, there is no secrets involved, but is it necessary, Mr. Speaker, to have a filiation case proved to be able to ask the puta tive father whethe r he, in fact, committe d adul tery. It is a civil proceed ing, Mr . Speaker. The woman can testify and if the man does not testify it has been held, in filiation proceedings, tha t although that might no t be outright corroboration, the fact that he did not deny it could be used by the judge as forming part of the corrobora tion.

If one wanted to deal with that question, a filiation proceeding, which is not the most serious one, all that one has to do is say that a person not denying the allegation can be considered corroborative evidence of the person who is claiming that he is the father. All that you would have, Mr. Speaker, is a woman testifying, no denial, the judge seeing that there is testimony and not hearing a denial could be able to find for the proceedings and that would easily be solved. Mr. Speaker, the other area which the lawyer referred to, was the area, Mr. Speaker, with respect to divorce actions. Mr.

Speaker, if it was only divorce actions, I can tell you I would still be against requiring the testimony; but if it was only the divorce action, then why is the Minister, why is this House being asked to say that in any proceeding, that's not a divorce action, whether the person is a party thereto or not - that means it doesn't have to be a respondent in a divorce action. No person shall be excused from answering a question as to whether or not he or she has been guilty of adultery. Why not say, Mr.

Speaker, in a proceeding where adultery is alleged, and the parties are named, those parties should be compellable witnesses as to their own adulteries and as to the allegations contained in the petition. Mr. Speaker, I would still not say that it should be compellable, because my experience in divorce cases was not that people were not prepared in many cases to testify, but that the judges, for reasons that have to do with collusion and connivance, were not always anxious to grant a decree on the basis of the admissions of the corespondent and the respondent.

It wasn't good enough and therefore, I'm not saying it wasn't done, Mr. Speaker, but it wasn't considered the best type of independent evidence and people were only too willing in many such cases to get up and give the testimony. Mr. Speaker, that's not what is sugge sted here. What is sugge sted here is that in any proceeding, whether a person is a party thereto or not, he or she will be required to answer questions tending to show that they have been guilty of adultery. Mr. Speaker, the lawyer also said that it would have to be relevant question. But, Mr.

Speaker, you do not know when a judge is going to say that it is a relevant question and there are many divorce petitions, or there can be divorce petitions, where the opposite party is not named; where the wife sues her husband for having committed adultery with a person unkno wn or a husband sues a wife for having committed adultery with a person who the petitioner cannot name; and what will occur, if this law is enacted, is that the husband, or the wife as the case may be, would be asked to testify with regard to their own adultery 6177

Tuesday, 29 July, 1980 and, as the Minister has already indicated, would have to name the other party. Mr. Speaker, I see no validity for changing the existing rule, and I can tell my honourable friends that there are many cases in which this could come up which have not been brought to the attention. It could come up in a defamation case, Mr. Speaker; it could come up in a case involving alienation of affections; it could come up, Mr.

Speaker, merely because a lawyer is trying to prove an affinity between one of the witnesses and another party to the proceedings; and when it is going to be relevant, we don't know. The lawyer who appeared before you said it would have to be relevant and that it is usually in order to assist a divorce. If that were the case, Mr. Speaker, I would suggest to you that the law would be changed to require that answer to be made in a divorce proceedings where the parties are named. Where that is not the case, Mr. Speaker, I've already indicated that it should not be.

The First Minister a few days ago said you had better not go changing law before you know the reason that the y were there in the first place. There has been no good reason given, Mr. Speaker, why this law should be changed and I would say that the privilege that has existed for many many years should continue to exist and should only be changed insofar as somebody come s in and presents an absolute reason for changing it. It has also been suggested, Mr. Speaker, that this rule, although it applies to adultery doesn't apply to other heinous acts. That's The Evidence Act, Mr. Speaker.

But if you go to the common law, there was always a privilege of against self-incrimin ation and that didn't only involve crimes, it involved heinous conduct, and there is good reason for the rule, Mr. Speaker, both from the point of view of the administration of our courts and what is common decency. I tell the honourable members, and I ask them to speculate upon it.

If there was a case and if there was a woman who was on the witness stand and she was asked a quest ion about having commited adultery with a person and that woman said she will not answer that question because she does not wish to disclose the name of the person who may be a very respected gentleman in the com munit y with a family, and the se things can happen, Mr. Spe aker. Which one of you would uphold the judge in saying that woman should be imprisoned for contempt of court? Those who would say she should be imprisoned for contempt of court, vote for this bill.

Those who say that what she is doing is right, under the circumstances, vote against this bill. MR. SPEAKER: The Honourable Attorney-General. MR. MERCIER: Mr . Spe aker, I wonder if the Member for lnk ster would answer a question? MR. GREEN: Sure. MR. MERCIER: Just to clarify, Mr. Speaker, the Member for lnkster's position, would he advise me whether his concern relates more importantly and more seriously to questions of this nature being asked in othe r than proceed ings institu ted in consequence of adultery? MR. GREEN: Mr.

Speaker, I have indicated that if the privilege was taken away where a witness, where the person was a party, where the adultery was alleged, where the allegations of the adultery are in the petition and th erefore already public, that a person not be excused. Where the adultery is the basis of the proceedings, Mr. Speaker, I could see a reason for it. I have the tell the honourable member that I think I would still be against it, because I don't think it's necessary, but I could see other people being convinced on that type of case but not on the legislation that is before us. MR.

SPEAKER: The Honourable Attorney-General. MR. MERCIER: Mr. Speaker, I thank the Member for lnkster for his clarification, which I think was a most important one because he acknowledges that a reasonable number of members could be convinced that it is important, say, in divorce proceedings or filiation proceedings; that where it is important that the truth of the matter be ascertained that the protection should probably not be allowed in those circumstances, and his concern is other than those types of proceedings. Mr. Speaker, in a situation like this it is always interesting to note what other jurisdictions do.

Mr. Speaker, I indicated previously that England had repealed this privilege some time ago, that the Uniformity on Law Conference recommended it, but it is interesting to note the provincial legislation. Each of the Atlantic Provi nces, othe r than Newfoundland, have legislation in this area but the protect ion is limi ted to the

partie s and their husbands and wives, and the protection applies . MR. SPEAKER: Order please. MR. CHERNIACK: Mr. Speaker, I'm sorry, I do want to hear the Honourable Minister. I can't hear him, and I would like to be able to. MR. SPEAKER: Order please. I hope all honourable mem bers will give the honour able mem ber the attention that this deserves. The Honourable Attorney-General. MR. MERCIER: Mr. Speaker, I will try to be as brief as possible .

I was pointing out that in the Law Reform Commission Report, it pointed out that each of the Atlantic Provinces, other than Newfoundland, have legislation in this area, but the protection is limited to the parties and their husbands and wives and the protection applies only to those proceedings instituted in consequence of adultery. Ontario has follo wed the English legislation in granting of protection to all witnesses but confining the proceedings to those grounded in adultery, as in the Atlantic Provinces. British Columbia has limited the protection to a petitioner in matrimonial proceedings.

Saskatche wan 's legislation is similar to British Columbia's in that it confines the protection to matrimonial proceedings, but their protection applies to any party, not only the petitioner. So it would appear, Mr. Speaker, that in about seven or eight provinces in Canada, the protection exists, but exists only in proceedings instituted in 6178

Tuesday, 29 July, 1980 consequence of adulte ry and does not apply in respect of other legal proceedings, which is the main concern of the Membe r for lnkster. I am not aware, Mr. Speaker, of any harm that has resulted in those provinces, those seven or eight provinces where they do not have the protection in proceed ings other than divorce procee dings or filiation proceedings. Mr. Speaker, we talked about this in committee.

Clearly the determination that a court would use in whether or not to allow such a proceeding in any other proceeding other than a divorce or a filiation proceed ing would be whe ther the que stion is relevant. Obviously that is being used, Mr. Speaker, in all of these other jurisdictions, these seven or eight other provinces, in avoiding any of the harm that the Member for lnkster is suggesting. Inasmuch as he agrees that there is at least a reasonable argument that the protection should be done away with in proceedings instituted in consequence of adultery, Mr.

Speaker, I sugge st that the fact that these seven or either other provinces in Canada, as well as England and nu merous law reform commissions, etc ., that have looked at this, is evidence that the harm that the Member for ln kster sugge sts is inherent in passing this bill is just not there. QUESTION put, MOTION carried. MR. GREEN: Yeas and Nays, Mr. Speaker. MR. SPEAKER: Ha s the honourable me mb er support? Call in the members. Order please. The question before the House is third reading of Bill No. 7,

An Act to amend The Manitoba Evidence Act. A STANDING VOTE was taken, the result being as follows: YEAS Messrs. Adam, Anderson, Banman, Blake, Brown, Cherniack, Corrin, Cosens, Cowan, Craik, Doern, Downey, Driedger, Einarson, Enns, Ferguson, Filmon, Fox, Galbraith, Gourlay, Hyde, Johnston, Jorgenson, Kovnats, Lyon, MacMaster, McGill, McGregor, McKenzie, Malinowski, Mercier, Mille r, Minaker, Orchard, Parasiuk, Pawley, Mrs. Price, Messrs. Ransom, Sherman, Steen, Wilson. NAYS Messrs. Barrow, Bostrom, Boyce, Desjardins, Evans, Green, Hanuschak, Jenkins, Schroeder, Uskiw, Walding, Mrs. Westbury. MR. CLERK: Yeas 41; Nays 12. MR. SPEAKER: I declare the motion carried. Bill No. 48,

An Act to amend The Legislative Assembly Act. The Honourable First Minister. THIRD READING - AMENDED BILLS BILL NO. 48, as amended, was read a third time and passed. (On Division) MR. SPEAKER: Bill No. 80,

An Act to amend The Payment of Wages Act and The Real Property Act. The Honourable Minister of Government Services. THIRD READING BILL NO. 80 -AN ACT TO AMEND THE PAYMENT OF WAGES ACT AND THE REAL PROPERTY ACT HON. HARRY J. ENNS (Lakeside) presented Bill No. 80,

An Act to amend The Payment of Wages Act and The Real Property Act, for third reading. MOTION presented. MR. SPEAKER: The Honourable Minister of Labour. HON. KEN MacMASTER (Thompson): Mr . Speaker, I think it is important that we say a few words about this bill before it does in fact pass. There have been some comments by the Member for Logan, in particular, that I was absent when the vote was taken at second reading. I should tell him that I was out of the city representing the government on that particular day. But I should also tell him, Mr.

Speaker, that I will be here this evening and I will be here when third reading is taken and I will be voting in what I consider an appropriate manner. Mr. Speaker, I think that the piece of legislation is very im portant, espec ially to working men and women in this province who in fact are employed by others. It's im portant, Mr. Speaker, because it illustrates the false protection and the false security which the NDP tr ied to parade as some thin g sign ificant when the y revamped The Payment of Wages Act in 1975, that's why it's important, Mr. Speaker.

With the approval of this bill employees in the province of Manitoba will know in fact exactly where they stand as it relates to their payment of wages a·nd as far as it stands where the mortgage payments and moneys are forthcoming. Mr. Speaker, that's why the courts have inte rpreted the laws of the land. It's not our government which is determined that the federal law takes priority over provincial legislation. It wasn't our particular government, Mr . Speaker; it wasn't the government of Saskatchewan, Al berta and B.C. who, by the way, are all having problems with the same similiar type of legislation today.

No amount of tinkering or complaining or political posturing will change the facts of life. Bill 80, as it is here this evening, reflects the law of our land. My friends opposite have attempted to make a rather big deal out of the bill. They have again tried to sell the bunch of nonsense that the Conservative Party is only interested in the big corporations and only the NOP really understands and cares for the working men and women in this province. Mr.

Speaker, I think, after 20 years in Thompson and 10 or 15 years previous to that working around this country, I think I have an idea of what the aspirations, the desires and wishes of working men and women are. The members opposite scored some political points in 1975 when they introduced the legislation which our government finds it now must amend. They are now trying to score some more political points, Mr. Speaker. They doled out false 6179

Tuesday, 29 July, 1980 hopes five years ago; false hopes when they brought in the original legislation. Now they are still trying to forcefeed more false hopes to working men and women. Mr. Speaker, the members of the opposition have speculated on some of the legislation we have brought in. They have speculated on the fact that it may not do what we think it will; it may not be as good as we believe it to be. Mr. Speaker, we now in hindsight, in history, can say that they made some errors themselves. They made in an error in 1975 whe n th ey brought in this particular pie ce of legislation. Mr.

Speaker, the members opposite may think that they are pretty wonderful fellows because they are standing up and grandstanding on this particular bill. There are several possible reasons for their bizzare behaviour. Mr. Speaker, the first one may be that they just don't understand the legal reasons which really make this legislation rather straightforward, or else they don't understand but they refuse to admit it. I should add, Mr. Speaker, that this certainly wouldn't be the first time that some of the most vocal members on the other side of this House didn't understand simple logic.

Another reason may be that they just want to play politics with this particular bill; that they are willing to do anything just in the dying moments of this particular session to attempt to get themselves some time. They have, during the second reading and thr ough comm ittee, discussed this particular bill and are making points that aren't, I don't believe, valid, Mr. Speaker. I think it's about time that work ing men and women in Manitoba were told the truth. It's fine and dandy for a politician to claim that he or she represents working people.

I have always believed that actions speak loude r than words, and our government thinks it's about time the workers in the province of Manitoba were told about the legislation that was brought in, in 19 75. I don't intend to deal in detail with the comple x legal argume nts or the

interpretations by the courts which are in fact, Mr. Speaker, the basis for Bill No. 80. However, I do think that it is politically dishone st for members opposite to totally ignore the legal basis for the bill. This is not a provincial jurisdiction in Canada. There isn't one that I know of, Mr. Speaker, which can guarantee wages as the number one priority as it affects such matters; not one, not even our sister province in Saskatchewan. Other provinces have legislation which is similar to ours and not one has been able to designate wages as the numbe r one priority. The reason, Mr.

Speaker, it can be answered in two words and that's the "courts of", the courts of our land, and yet friends opposite like to try and make people believe that this bill results because our government is only interested in large corporate citizens. It's not the fact, Mr. Speaker. The fact of the matter is that the laws of the land dictate that priority for wages is in fact not permissible as a number one priority. The Supreme Court of Canada recently ruled on a British Columbia case and said that registered mortgages have priority over payment of wages.

The Manitoba Court of Appeal referred to the Supreme Court decision when it ruled that wage earners do not rank in priority over registered mortgage. I might add that our Manitoba Payment of Wages Act was fashioned after the British Columbia Act. Mr. Speaker, it's the highest courts of our country which have made the se rulings tha t reg istered mortgagors come before the claims of workers. So much for the legislation which was passed five years ago. This amendment to The Payment of Wages Act does not take away any protection from the working men and women because the y ne ver had th at protect ion, Mr . Speaker.

They ne ver had the protection to begin with and it's dishone st and hypocritical for members opposite or otherwise to pretend otherwise. Their amendment five years ago may have looked good on paper but, Mr. Speaker, that's all it was good. The amendment in Bill No. 80 simply places my department and our employment standards staff in a position, Mr. Speaker, to work accordingly to the laws of Manitoba and the laws of Canada. There is no point, Mr. Speaker, in creating a false impression and giving people false hope that wage earners will receive top priority when we know this is just not true.

The argume nt migh t be made th at the Legislatures and not the courts should dictate the law; however, this situation just isn't that simple, Mr. Speaker. No matter what legislation we might want to pass under The Payment of Wages Act, the simple truth is that the federal legisla tion would take precedence. For example, consider The Federal Bank Act. Banks can lend money to employers and use goods as security. Once a bank has registered that security, The Bank Act provides the bank with priority over all rights in respect of such property and also over the claims of any unpaid vendors. I want to refer, Mr.

Speaker, to a Court of Queen's Bench decision involving The Payment of Wages Act. A decision was handed down by Chief Justice Archie Dewar, and he said, and I would like to quote, but before I do, Mr. Speaker, in making reference to the Chief Justice, some of the membe rs opposite, and I would think particularly the Member for Kildonan and the Member for Logan, in their history in unionism, I don't think, Mr. Speaker, that they would find a man who had greater repect by the labour movement in Manitoba than Mr. Arch ie Dewar, when he was handling arbitration cases and conciliation problems in the province .

He was one of the best, Mr . Speaker, that a lot of union people felt. We thought he was one of the best in the province, Mr. Speaker. Chief Justice Doer said, "In my view, the provincial legislation intended to create only a priority for a lien over rights it had power to effect. These did not include priorities confirmed by

Section 89,

part 1, of The Bank Act. Even if it were otherwise," said, Mr. Dewar, "and conflict can be said to exist between the priority provisions of the two statutes, the provisions of The Bank Act must prevail." That was said by the Chief Justice in the province of Manitoba, Mr. Speaker. Mr. Speaker, I really don't know who we are fooling with opposition to Bill No. 80, when the highest courts have clearly stated that the Manitoba Legislature does not have the authority to give wage earners the num ber one priority thr ough The Payment of Wages Act. Mr.

Speaker, I said a few minutes ago that Bill No. 80 does not take away protection from Manitoba workers because that protection, in fact, doesn't 6180

Tuesday, 29 July, 1980 exist. In a positive light, Mr. Speaker, what this amendment does do is place The Payment of Wages Act in a position which my department staff and the Employment Standards' staff feel they can defend, and which my department feels confident will not be challenged. This amendment recognizes the facts of life and only puts wage earners behind the money lenders. The workers will not be standing in line behind company suppliers to colle ct their wages, as some people have charged. I sugge st to you, Mr. Speaker, that we talk just for a second about who the money lenders are.

Certainly they are banks and they are trust companies, but they could also be credit unions which are owned by work ing me n and wome n in the province of Manitoba. They could be elderly couples living in any particular

section of our province. I don't really think that we'd want to take away the moneys of the elderly couples who have in fact invested their life savings, Mr. Speaker. Mr. Speaker, I am not saying - repeat, not saying - that workers should be without rights or recourse if their employer fails to succeed in free enterprize in the free enterprize market system. I want to assure you, Mr. Speaker and I want to assure the membe rs opposite and the workers of Mani toba that my department will do everything it can to ensure, Mr. Speaker, that such workers are fairly treated.

We have done so in the past and we will continue to do so in the future. The whole question about priority is not unique in Manitoba, it has been raised across the country. British Columbia and Saskatche wan are presently encountering similar difficulties in regard. Al berta is reviewing the problem and so is Newfoundland. Our department has been in touch with the Province of Saskatche wan recently to find out what they are doing about the problem and they are saying, we are looking at ways to amend our labour legislation so that we can maintain as much priority as possible. Mr.

Speaker, that's exactly what we are doing in Manitoba; we are attempting to maintain as much priority as possible, the same as they are doing in Saskatchewan, Al berta and British Columbia because of the court decisions that our country has been faced with. That, Mr. Speaker, is a lot different than province s saying "top priority" because we now know the law of the land says we can't. We refuse, Mr. Speaker, to play a charade of appearing to give workers numbe r one priority when we know, in fact, the courts, the federal jurisdiction makes such legislation meaningless. It goes against my principles, Mr.

Speaker, and it goes against my sense of common decency to try and tell working men and women that they have something, when I know they do not have it according to the courts of the land. The argument about whether the federal legislation should be changed to give Manitoba's Payment of Wages Act priority is not something that we are going to settle here. Of course, my friends opposite have a wonderful ability to ignore reality and, in fact, human compassion and to play politics with the lives of working men and women in this province.

And that is what's going to take place if, in fact, we don't support this particular bill, Mr. Speaker. Mr. Speaker, this bill is the facts of life, it's the law of the land. I don't believe we should be teasing people or fooling people or trying to lead them down a garden path and saying that they have something, they are entitled to something, when the law says they don't have it. One last thing, Mr. Spe aker, the opposition remarked that I wasn't present for the vote, the second reading of Bill 80. Mr. Spe aker, I'll be standing here this evening to be counted. Mr.

Speaker, I will not be counted among those who try to mislead the working men and women in Manitoba with false promises and false hopes. MR. SPEAKER: The Honourable Membe r for St. Johns. MR. CHERNIACK: Thank you, Mr. Speaker. Will the Minister permit a question or two? Mr.

Speaker, is the Minister stating une quivocally that under no circumstances does the present law giving priority of wages over registered mortgages applicable; in other words, setting aside the Bank Act, setting aside bankru ptcy, is the Minister saying that in no case would the wages have priority over registere d mortgages as outlined in the present law, is he stating that? MR. SPEAKER: Orde r ple ase. The honour able member is asking for a legal opinion. MR. CHERNIACK: Mr.

Speaker, I would not ask the Minister of Labour for legal opinion as one that he is able to give in a legal capacity, but he stated time and again that it is misleading to suggest that this law would in any way be a protection to wage earners, and I want to get clarification from him whether he is quoting the Bank Act and the Bankru ptcy Act, or whether he is applying his statement that it does not assist at all to all cases. I think we are entitled to an answer from him as to what he is trying to convince us of. MR. MacMASTER: Mr.

Speaker, I think that the Chief Justice of the Province of Manitoba has given his findings and his decision, and he claims that if the Payment of Wages Act runs in conflict with the federal legislation that the federal legislation would prevail. MR. SPEAKER: The Honourable Me mber for Churchill. MR. COWAN: Thank you, Mr. Speaker. We had waited some time for the Minis ter of Labou r's participation in this particular debate and had, quite frankly, anticipated more.

Because if ever there was a sham or if ever there was someone trying to score political points, and by doing so flying in the face of the facts, it was the Mi nister of Labour in his remarks just previous to the questions from the Member for St. Johns. But, he put it very succinctly, Mr. Speaker, when he said - and these are his words directly; it is a direct quote as to what he just said - that this Act, what it accomplishe s is only to put the wage earners behind the money lenders, and that is exactly what the Act does.

He can use all the hype rbole tha t he wants, he can use all the arguments that he wants but he, himself, in the end has to admit that this particular Act accomplishes 6181

Tuesday, 29 July, 1980 one purpose only, and that is to put the wage earners behind the money lenders. He has accused us of trying to make a big deal out of this Act. Well, Mr. Speaker, we have tried to make a big deal out of this Act because we believe that this Act will have a profou nd im pact on the wage earner s of this province, and we happen to think that the wage earners of this province are a big deal; we happen to want to support them. He said this piece of legislation is important.

Of course, it is important and that is why we have spent the time and the energy and the effort on fighting it; it is important. But he says, or he would have us believe, that it is important to working people; it is important to those who work for others, not because it takes away from them, not because it puts them behind the money lenders, but because, in fact, it only clarifies the situation and it removes from them false hopes and false expectations. Well, this piece of legislation is important to the working person.

It is important like the rent decontrol legislation is im portant to the tenant, and it is im portant like the milk decontrol le gisl ation is important to the consumer; it is important because it takes away from them a protection to which they are due. That is why it is important, Mr. Speaker, so we will make a big deal out of it. And if he thinks he's seen a big deal in this House, wait until he sees us on the hustings with this because that is where we are going to make a big deal out of it. Mr.

Speaker, he talks about the laws of the land and we all respect the laws of the land here and we should have a better unde rstanding than he has shown that he has in his speech. What he tries to tell us, and through us the people of the province - and talk about trying to perpetrate a sham on the people of this province; it's ludicrous the argument that he uses - the argument he says is that because of this Act, which dealt with a federal jurisdication, with a federal problem, because this Act was overturned in one instance in the courts that, in fact, it does not afford any protection to the provincial worker.

Well, Sir, that is like saying we should throw out our Workplace, Safety and Health Act, which I think some of them would like to do, because we have federal jur isdications in the Province of Manitoba and it doesn't apply to them. The fact is that this does apply and it can be made to apply even better; it can be clarified even more for those in provincial jurisdiction. And if he chooses to ignore that fact, that's his problem; but if he chooses to tell the province tha t that is not a fact, th en he is perpetuating a myth and a fallacy, Mr. Speaker.

He has said that we have tried to score political points on this; he has accused us of being poltically dishonest, of grandstanding, of being hypocritical. Mr . Sp eaker, notwithstand ing the parl iam entary usage of those words, I can only suggest to him what he has misinterpreted is an honest and a sincere effort on the part of the New Democratic Opposition to protect the interests of the working people of this province , no mo re, no le ss.

And if it appe ars anything else to him, then he, Sir, has a very poor attitude as to what this party stands for, he does not understand it, and as to what rights the working people of this province should enjoy. It's been customary the past day, when standing to speak to a bill, saying that I don't want to add to this debate, or I don't want to prolong this debate, or I'll be brief, Mr. Speaker, I am going to say none of that because that is not how I feel. I want to add to this debate and if I could prolong this debate so long as to not have this bill passed I would do so, Mr. Speaker.

But I know my limitations in opposition so I will speak full length to the bill because I believe it is a bill that we must address ourselves to and we must do so comprehensively and to the best of our ability, and that means giving it our best shot. Time has passed since this bill was first introduced. It's been quite some time since this bill was introduced. We've gone through debate in this House; we've gone through committee hearings; we're now into further debate on this particular bill and I am certain that the study of this bill will continue on past this debate.

But in all of that, Sir, nothing has changed. Our worse fears have been substantiated and they were just compounded by the statement of the Minister of Labour. Because, quite frankly, I had held out some hope that the Minister of Labour would use his office and would use his influence and his clout within his caucus to convince them of the folly of this Act, to convince them that it was not necessary, to convince them not to take away what protection there was but to convince them to build into the legislation even gr eater protection. If there is a problem with the courts, clarify the problems.

We make the laws of the land in this Chamber here; they interpret them. If there is a misinterpretation or if, in our imperfect ways, we happen not to make legislation that the courts agree with, then it is not our only choice to throw that legislation out, but we have a much better choice, I think, if we belie ve in the principle behind the legislation and that is to clarify the legislation so it does suit the courts, to expand upon it so that it does suit the courts. That was the choice that the y had and the y obviously chose not to do that.

They chose to throw the bill out and they had to find an excuse for that; that is what the Minister has given us this evening, not an enl ighte ne d spee ch, no t a speech of conviction or philosophy, but an excuse. An excuse for the fact that he is going to have to stand up in a few moments and put squarely on the record the fact that he has voted against the working people of this province. That is what he will have to do. So our origina l alle gations, which have been scoffed at, were confirme d just recently by the speech from the Minister of Labour.

This legislation attacks the rights of workers, and by doing so it attacks the workers themselves. It takes away their economic protection; it places the banks and the money lenders before workers, you don't have to take my word for it, you have the word of the Minister of Labour; it puts mortgage com panies before the employees and it favours financiers over those who must labour for a wage in this province. It is typical Tory legislation and there's no need to pretend. There is no need for any further excuses, such as we just received from the Minister of Labour, as to the intent of this particular Act.

It is nothing other than philosophical and it is nothing other than ideological. We've heard some ludicrous discussions; we've heard some ludi crous jus tifications and excuses for bringing this bill forward, Mr. Speaker. Exceedingly shallow in most instances, ill-thought 6182

Tuesday, 29 July, 1980 out, an attempte d defence of the indefensible because this bill is, in fact, indefensible. Workers, as investors in mortgage companies, as holder of savings accounts in banks and credit uni ons - we've heard that statement from the Attorney-General, we've heard it from the Minister of Labour and now we've heard it from everyone on that side who has talked to this particular bill - as stockholders, they have sugge sted they might lose their investments.

If a mortgage company, or a financial institution, or a bank, or a credit union, or a loan company was forced out of business because workers colle cted their just due, the wages due to them, up to 2,000.00 - there's a limitation on that also - before the financiers collected back their investment, their full investment, if there is that much -(I nterjection)- plus interest, certainly, before they had colle cted that. Mr. Speaker, that argument is so ludicrous as to defy any sort of logical excuse for its use.

When the representative of the Mortgage Loans Association of Ma nitoba appe ared before the committee hearing we asked him to document such cases and he was unable to do so. We asked the Attorney-General to document one single instance where that had happened. He was unable to do so.

We aske d anyon e, and the challenge still is extended, to document one individual case where that has happened and I will sugge st to you that they will be unable to do so, to document one instance where a mortgage company, or a financier, or a bank, or a credit union, or a loan company was forced out of business because the workers colle cted their just due. Such is not the case. That's the type of fantasy, Mr. Speaker, that they have asked us to bel ieve throughout this de bate and I can only suggest that it is hogwash. I hope that word is parliam entary, I think it is.

It's hogwash, it's balderdash, it's ludicrous, it is inane, Mr. Speaker. (I nterjection)- I'm sorry, I will sit down to allow the First Minister to put on the record. MR. LYON: He said to the honourable member, Mr. Speaker, that his

interpretation of the law is not appropriate for Canada. MR. COWAN: I will allow, Mr. Speaker, those who are far more able to defend the statements that I made in regard to legalities and to counteract and contradict the statements that the First Minister has just put on the record, to stand and do so after I have finished my presentation. I am certain they will because there are those in this room who know the law of Canada much better than I do, much better than most in this province.

I assure you that I have checked with those persons, that I have asked them for their opinion and the y have given me their opinion and I trust their opinion. As a matter of fact, if the First Minister is saying that this Act cannot apply to provincial foreclosures, I think that he will find hims elf wrong also. I don't mean to be so presumptious, as to say I know the law better than him, the law of any jurisdiction better than the First Minister because I don't. But I know what affects working people, Mr. Speaker, and I know what this bill is going to do to them.

When asked to su bstantiate the claims that perhaps th ese businesses and these financiers will be driven out of business because workers had claimed wages that were due to them in the event of a foreclosure, the Attorney-General smiled his Cheshire cat smile, Mr. Spe aker, and le ane d back and 'w as unable to document his claims, unable to prove the economic necessity for this anti-e mplo yee legislation, which leaves us only with the justification, and it is the justification that they embrace to their heart, and that is, that it is anti-em ployee.

It was intended to be so and it will serve to accomplish that purpose, Mr. Speaker. One does not have to take my word for it alone. The Minister of Labour, when speaking, read into his speech a quote from the Chief Justice. I'd like to read into my speech, Mr. Speaker, a quote from the Executive Secretary of the Manitoba Federation of Labour. And I am not, by doing that, in any means suggesting a comparison between the two, but what I want to bring forward into this House is two different perspectives on the issue.

I want to bring forward the perspective of the person who has been chosen by the Manitoba Federation of Labour to run their administrative businesses, to deal with this sort of legislation, to look into this sort of legislation, to determine the impact it will have on working people, to determine in fact if it will be negative or positive. What this executive secretary said, and I quote, Mr.

Speaker, from the committee hearings of July 14, 19 80, when the Executive Secretary of the Manitoba Federation said, "I t seems there is a comple te reversal in thought and principle," he's addressing himself to this bill, "I guess, as to who is most deserving, the individual that is putting his sweat to do the job to provide the revenue for the company. After they have done that, then they are going to be deprived of their earnings in that respect." So this seems to be a very low type of attack on workers with preference given to other monied interest; it's just as simple as that.

And indeed, the Minister of Labour has indicated, when he stated that all this bill is intended to do is put the wage earners behind the money lenders, that it is just as simple as that. It is a low attack on the rights of the working person of this province ; it is a phi losophi cal attack; it is an ideological attack; it is an attack on the rights and the interests of the workers. It is not so much anti­ union as it is anti-working person, Mr.

Speaker, because unionized workers - and this was put on the record also during those hearings - will be able to provide themselves with protection in regard to bankrup tcies and foreclosures through the colle ctive bargaining process and the Minister of Labour knows that. They will be able to take this to the negotiating table and, as the President of the MFL said, and I wholeheartedly concur, will make the negotiating process more complicated. It might create a strike or two, but they've learned to live with that and they will, indeed, provide protection for their workers.

So when they came here to speak before the committee they were not coming here so much to speak for their own self-inte rest, but to speak for the interests of those who were not fortunate enough to be organ ized , who did not have the power of organization, those who were going to be most affected by this Act. That's the non-unioni zed and non-organ ized employee who will suffer the brunt of this bill, will suffer the economic loss of this bill, and there will be suffering, let there be no doubt about 6183

Tuesday, 29 July, 1980 that. There will be suffering as there has been in the past and it is historical, and by being historical we can, in many respects, derive assumptions from the past. And one of the assumptions that comes first to mind, and one of the assumptions that will be borne out first, is that this Act will create suffering for the working person in this province, because the original legislation was not created in a vacuum. It was not just thought up out of the blue . Someone was sitting back and saying, what sort of legislation do we want today? Let's put this particular piece of legislation in.

No, Sir, it was brought in because there was a need, there was an economic need. It addressed itself to that particular need, Mr. Speaker. If I can quote from the hearings again. Again, the Executive Secretary of the MFL and I quote, "We had case after case after case where workers were not getting their wages as a result of bankruptcies. It's a simple as that. We had some very pathetic cases, large in num bers, groups of employees after working for a considerable time for an employer being deprived of their earnings when they came to try to colle ct it down the line a month later or two months later".

So we find that there will, indeed, be suffering because there had been suffering in the past. When this bill was brought forward by the Minister of Labour in 1975, or the amendments to the bill, it was intended to prevent economic misery. It was inte nde d to forestal l, to correct, those pathetic situations to which the Executive Secretary of the MF L addressed himself. It was attempted to bring into balance a situation that was out of balance, that was out of kilter. It attempted to rearrange power. What it was intended to do was to take power away from the financiers.

A partial list of some members and associates of the Mortgage Loans Association of Manitoba, this is who it was intended, Mr. Speaker, to take power away from, the Bank of Montreal, the Bank of Nova Scotia, the National Bank of Canada, the Great-West Life Assurance Company, the Monarch Life Insurance Company, the Royal Bank of Canada, the Toronto-Dom in ion Bank, Sun Life Assurance Company, Royal Trus t Company of Canada, National Trust Company, Mont real Trust Company, Mercan tile Bank, Mortgage In surance Company of Canada. Mr.

Speaker, I went through the li st of mem bers of the Mo rtgage Loans Association of Manitoba, as provided to us by their representative at that committee hearing, and I found that out of the 40-some members that were listed, nearly one-half of them had contribute d to the Progressive Conservative Party. If you took their lump sums on a federal level they would have contri buted a-quart er-of-a -million dolla rs to the federal Progressive Conservative Party. Now, I'm not going to say, Mr.

Speaker, that there is any connection between that contribution and the fact that this type of legislation has been brought forward, but there will be those that say that and I will not declare them wrong. I will not suggest that they're wrong, Mr. Speaker. (Interje ction)- The Member for Flin Flon said, you would be probably be one of the first. The Member for Flin Flon has a very astute insight into what makes governments tick. He's been here much longer than I and he knows much better than I. Mr.

Speaker, what we have is a piece of legislation that's been brought in against all reason, against all logic, and worse of all, contrary to jus tice and fairne ss. (I nterject ion)- The First Minister asks, whose justice? Well, we all have a perception.

My perception of justice, exactly, and my perception of justice is that the wage earner who works for a living, who only demands a fair day's wage for a fair day's work should get their due before the Bank of Montreal and before the Royal Bank Trust comes in and rips the money from their very pockets, takes the food off their tables - because that's what it will do; that is what it will do. And if that is not justice, Mr. Speaker, then I am in the wrong business . . . MR. LYON: You sure are. MR. COWAN: . . . because I have come here to fight for exactly that type of justice.

I have come here to see that type of justice brought forward after many many years of darkne ss for the work ing per son , Mr. Speaker, and just when we see it happen, just when we see this type of legislation brought forward, we are un fort unate to have a change of government and be cast back into the darkness once again, to be thrown back into the pre- 19 75 days when this ame ndme nt was brought forward.

We've looked at what the original amendment was intended to accomplish, justice and fairness; let's look at what their particular amendment is intended to accomplish and what it will accom plish. (Inte rjections)- Mr. Speaker, I've grown used to the red baiting, I don't think it's particularly becoming to the First Minister but, again, the people will decide as to whether or not they believe that that sort of activity should be part and parcel of this particular Chamber. But that will be their choice, Mr. Speaker, and I don't want to in any way add to that particular form, or sink to that level of debate.

I think that the First Minister is perfectly comfortable there, along with his colleagues. But, Sir, what will this amendment do? It will place the priority of the wage earner behind that of the registered mortgage holde r, of the hol der of collateral, of the financial elite. It is legislation that is typical, as well as expected from the likes of the government that we face, for what they are in fact saying, and this is implicit in the argument, Mr.

Speaker, if they don't have the courage to put it on the record, it is nonethele ss implicit in their actions, and they are saying that wages are not as important as mortgages. I don't think that they will deny that. They are saying that working for a wage is not as valuable as lending -(I nterjections) MR. DEPUTY SPEAKER: Order ple ase, orde r please. Order please. The Honourable Member for Churchill. MR. COWAN: Thank you, Mr. Speaker.

What they are saying and what they did not want me to put on the record as what they are saying is that working for a wage is not as valuable to our economy as the money lend ers, as lending money, as bank rolling industry, as financing. Aga in, I quote from the Executive Secretary who said it quite well in his presentation before the com mitte e when he suggested, Mr. Speaker, and I quo te, and he's talking about what this bill is and he says, "I think it 6184

Tuesday, 29 July, 1980 is one of disrespect for the workers that work for wages." That's different from a anti-labour attitude as far as I am concerned. I think it is a basic principle, that where do you put your principles first, in support of the corporation or in support of the individual. I think this bill answers that question for the government and that is why, Sir, they are attempting to be so defensi ve. But ag ain, th ey cannot defend the indefensible and that is what this particular bill is.

It typifies their disrespect for the worker, for the wage earner that asks for no more than a fair day's wage for a fair day's work. It is that wage earner, Mr. Speaker, who looks to the government for the protection of their wages, for empathy and for unde rsta nding. And it is the Prog ressive Conservative government, it is the Attorney-General, it is Minister of Labour who turn their back on the worker to embr ace their wealthy friends. Their friends embrace them, Sir, with arms of gold and one only need read the list to understand that. During the committe e hearings, Mr.

Spe aker, representatives of the Mo rtgage Loan Association of Manitoba present a brief and appear to support the sanctity of the registry and it handed out that list, and it is that list, Mr. Speaker, whom they embrace and who embraces them back. And as I say, I do not wish to imply any conne ction, either dire ct or indirect, it will be up the electorate to decide. It will be up to the voters of this province to determine what return to the financial institutions, what return the financiers realized on their political investments of a quarter of a milli on dolla rs to the federal Progressive Conservative Party.

It will be up the wage earners, who may lose their wages because of the pr ovisions of this Act, in the event of a foreclosure, so that the banks and the mortgage companies can once again come first; once again come first. It is up to them to decide to whom the Tories listen, to whom they owe their allegiance, for whom they shape their legislation. For in my opinion, Mr. Speaker, there is no doubt that is a philosophical piece of legislation, that it is an ideological attack of the worst type, a dogmatic attempt to take away the priority of the wage earner for the advantage of the financial institution.

It is not my opinion alone, Mr. Speaker. I find myself in such unaccustomed company as a column writer that appears frequently on Page 2 of the Tribune, of the Free Press editorial staff, as well as the accus tome d company and the ple asurable company of my coll eagues, my friends and the working people of this province. And such a diverse and varied crowd, Mr. Speaker, can't be all wrong. In fact, if there is someone who is wrong in this, it is the government; it is the Tory government who are now showing their his torical and ideolog ical perspective. It is they who are wrong, Mr.

Speaker, and I do not mind them being wrong. We have grown rather used to it this session; we have grown rather used to it historically. But I do mind them trying to impose their wrong-he aded views and their wrong-headed attitudes to the disadvantage of the working people of the province. That is why we stand to speak against this bill. It's not grandstanding. I say that sincerely to the Minister of Labour and I hope he takes that comment sincerely. It is not to score political points; for if there were any political points to be scored, Mr.

Speaker, I would do so if I thought it would take this bill away, if I thought it would take this nightmare out of existence, but there isn't. No, we stand here to defend a principle; we stand here to defend a philosophy; we stand here to defend an ideology also, because an ideology is what the First Minister addressed himself to, and that is the perception of justice, a perception of fairness. I don't deny any political party their ideology, for political parties, Sir, without their ideology will be rudderless. A political party without their ideology will be less than they should be.

A political party without their ideology, Sir, would be not to the best interest of either that party or the province that they would hope to represent. But I do wish that when they do bring forward that ideology that they have the courage to stand the re and say, yes, it is a philo sophical pie ce of legisla tion; yes , it is an ideological piece of legislation because it promotes what we belie ve in our mind to be justice and fairness. We can argue against that and we can argue back and forth, and I believe it would be a good debate.

But I don't believe the calibre of the debate is any way raised or increased when certain people come forward and sugge st that we are not discussing such, that all we are doing is discussing a simple housekeeping amendment to a particular Act that has been necessitated by a court decision, and that anyone who makes it any more than that is guil ty of the most heinous of crimes, of scoring political points, of grandstanding, of being politically dishonest. Sir, that was not our attempt and I hope quite hone stly that was not what was accompl ished, because it was not intended to be accomplished.

I would have only hoped that, for all our debate, we would have been able to convince them to change their mind. It is obvious that we have not. And for that I suffer a bit of sadness, not for myself so much, Mr. Speaker, but for the working person. Because I have been informed by members on this side that there are cases already happening that will, once this amendme nt becomes le gi slation , will in fact disadvantage economically workers in this province, that the impact of this bill will be felt much sooner than anyone had anticipated; and we suggested that that would be the case, Mr. Speaker.

It is with some sadness that I, Sir, finish my contribution to this debate, but I can only, in some solace, Mr. Speaker, I can only say that we will fight this battle again and I am certain, given the political climate of this province, that we will fight it shortly and I am certain, Mr. Speaker, that when we fight it next, that we - and by "we" I mean the working people of this province - will be on the winning side. MR. SPEAKER: The Honourable Member for Fort Rouge. MRS. WESTBURY: Thank you, Mr. Speaker.

I have a couple of questions of law to ask and I hope that someone on the government side will answer my que stions. I have thought about this particular provision,

Section 7(6), long and hard - my two selves have argued, because that's all I have to argue with - of the relative positions that I've heard expressed in the committee and here. 6185

Tuesday, 29 July, 1980 Mr. Speaker, what I want to ask is this: If this is reflecting the law of the land as it stands, why is it worded in the way it is? Mr. Speaker, why would it not be worded, for instance - and I'm talking about

Section 7(6) - notwithstanding the provisions of subsection (1) or of any other Act of the Legislature, whether of special or ge ne ral applic ation, any mortgage registered in a land titles office, prior to (

a) and (b), has priority according to the whatchamacallit Act or whatever Act it is, tha t this is me rely complying with? I don't understand why, in fact, this is here at all if it is merely complying with the law as it already exists. Maybe there is more than one Act which sets out what is in

Section 7(6). But if there is in fact no choice available to this Legislature, why was a choice made available to this Legislature? Why do we wait until the last half -day of the session and much debate that's been preceding on this particular bill to be told that this is merely complying with the law of the land? Why have we wasted all this time talking about the darn thing, Mr. Speaker? I hope that someone will answer these questions because they are troubling me, and to me, it means either poor draftsm anship or tha t som ebody is trying to hornswoggle us. MR. SPEAKER: Are you ready for the question?.

The Honourable Member for St. Johns. MR. CHERNIACK: Mr. Speaker, I admit that there have been times when the Minister of Labour has irked me by suggesting that no one else knows the labour legislation and that he does know labour legislation. Mr. Speaker, it's a waste of words to make that kind of accusation, unle ss it gives him a great feeling of superiority so that he can just put down others by saying, well, you don't know what you're talking about .

That's the action he gave today: You people don't know what you're talking about, the legislation is meaningless and that's why, on the standpoint of principle and the standpoint of common decency, he does not want to mislead the workers. Mr. Speaker, I have always had certain problems with this legislation and I have opted in favour of the NDP approach because, on balance, I think it is right in moral principle, in attitude in regard to the protection of those people who are least able to protect themselves.

And I'm now really talking about emplo yees who find the mselves in the position, indeed, where there is not one week's wages owing, but several weeks' wages owing, and more than that. Usually it is uno rgan ized labour that's in that position. It's usually someone whose employer said, "Wait a bit, I'm in a little bit of a bind now. I'll straighten it out. Something will happen. They are going to pay me for the order as soon as I am complete." People get caught in that.

So from the standpoint of principle , from the standpoint of common decency, I want to assess what the Ho nourable Mini ster of Labour said, because he was so unequivocal. He said it's contrary to the law. Mr. Speaker, I don't know who wrote his speech for him, I assume it was a legal opinion that he was quoting, but I think it was either half an opinion or he did not give us the whole opinion. I'll tell you why, Mr.

Speaker, and let me premise it by saying that I've been in the practice long enough to believe - in the practice of law - that the lawyer who claims to have all the answers at his fingertips is not that good a lawyer. The lawyer who knows where to look for the law is the lawyer on whom people should rely and I have to say now, that I did not prepare myself to have a legal debate, and I did not prepare myself to speak at all on this matter until the Minister of Labour started to tell us what the law is. Mr.

Speaker, what I am about to say is my impression of the law, my opinion of the law, and I don't think it is in conflict with Archie Dewar, or with any other judge. Frankly, Mr. Speaker, I don't set up Archie Dewar any higher than I do any other judge. I think all judges should be considered to be doing what they think is the right thing. But, Mr. Speaker, it is clear that the citation, the case quoted by the Minister of Labour, deals with The Bank Act, clearly deals with The Bank Act, and he the n drew a conclusion from th at case tha t it appl ies to everything. I don't believe it does, Mr. Speaker.

Let me tell you what I believe, and only on the basis of my recollection of the law, and on what I've been able to bring to my desk in the last few minutes. My belief is that - and I have the BNA Act in front of me - under Se ctions 91 and 92, there is a description of the distribution of legislative powers between the federal and the provincial jurisdictions. Under the exclusive � I stress the word "exclusive" - provincial legislation under No. 13 - is property and civil rights in the province. Mr.

Speaker, on that one section, we do a great deal of the work in this Legislature dealing with the property and civil rights of the citizens of Manitoba. Sec tion 91, which deals with the le gisla tive authority of Canada, it says that Canada - I' m paraphrasing it for simplification - may legislate, may make laws in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislature of the province, and for greater certainty, it then spells out certain matters that are of federal jurisdiction.

No. 15 says banking and corporation of banks, and the issue of paper money; No. 21, and this is very important, Mr. Speaker, is bankruptcy and insolvency. When I asked the Minister of Labour whether he was trying to tell us that une quivocally the law that gives certain priority of wages over certain forms of mortgages is not the law of Manitoba, which is the impression he tr ied to give us. He did not respond to my satisfaction because I don't think he understood the difference. Now, I state my position, my belief, and I don't have more law to back it up, but I have a concept. (I nterjection)- Mr.

Speaker, it is the Minister of Economic Affairs who knows only one answer from his seat and that is not to speak, but to insult. Every time he opens his mouth, and I don't always hear him, every time I hear him, it is to insult, and I will guess that every time I don't hear him, it is to insult. That is what he is doing now. (lnterjection)- Now he says: Good, it's straightforward. One thing about him is he is an honest strraightforward person. He wants to insult, he says so, except, Mr. Speaker, he hesitates to do it on a speech.

That Minister ought to be speaking on this legislation; he ought to be speak ing on this le gi sla tion. Mr . Speaker, it is my belief that under the property and 6186

Tuesday, 29 July, 1980 civil rights section, this government can legislate, mus t legislate and le gislate effectively and constitutionally, except where it infringes on the field of bankrup tcy and the field of banking. Those clearly are taken out by The BNA Act and, therefore, in the case of a bankru ptcy, when one looks at priorities, one has to look at The Bankrup tcy Act. But in the case other than bankru ptcy, and excepting for the case where the Minister quoted dealing with

Section - I thought it was 88, but I think he said 89 - dealing with security taken by a bank under The Bank Act, I understand that would be federal, but I believe in all other cases, that the legislation we passed is constitutional. Now, it may not be right; it may not be in accord with the opinions of many people, but I think it is constitutional if it is passed. Therefore, it is not a matter of principle or of common decency to try and tell the people, based on a bankrup tcy decision or a bank law decision, that they have no protection unde r the present legislation.

I don't believe that was the legal advice given to him in the full breadth of the protection offered to wage earners. He did not answer the question I asked him, and I suspect he didn't know the answer, and I really don't fault him for it. He is the one who poses as the authority on labour legislation, and as long as he poses in that way, then, of course - what is the expression, I was corrected the other day when I misused it - hoist on his own petard, is the expresssion. Mr. Speaker, now let's talk about for a moment my concerns, and I' ve always had certain concerns about the principle in this legislation.

If a mortgage lender lends money to a business enterprise, that mortgage lender knows to whom the money is being loaned and must know the risks involved and the protection required. Let me tell you, every mortgagee knows, if his lawyer tells him or if he is trained to know, knows that he must ensure that taxes are paid because taxes are always a priority over property tax.

Every mortgagee knows that is the law, and therefore every mortgagee who is sensible, and they are all pretty sensible, either requires a-twelfth of the annual taxes to be paid monthly to the mortgagee, or at least, requires a tax receipt annually to be filed with the mortgagee, or at worst, phone s up and makes sure that the taxes were paid, because if the taxes are not paid for a few years, that mortgagee is in real trouble.

Every mortgagee knows that he must be insured for risk, and every mortgagee knows that he's got to keep watching that that insurance policy is rene wed and the pre mium paid, and that mortgagee knows that if the premium isn't paid, he pays the premium - or it pays the premium. Every mortgagee knows that if the property is allowed to go into disrepair, the value of the pro perty deterior ates, the mortgagee is in dange r. Every mortgagee knows that under the contract of the mortgage he has a right to enter on the premises to make necessary repairs so that he is not damaged by the fact that there is negle ct.

Every mortgagee knows that he has to make sure that the property is not changed in form. Mr. Speaker, you can't even tear down a building and erect a better building without the permission of the mortgagee, because the mortgagee knows his security and should not have to risk what an owner might do it. I recall a case where some owner of a property wanted to tear down an existing house and build a different form of residence with unusual features like extremely large rooms, like kitchen fixtures that were no t quite what was gene rally acce ptable.

The mortgagee at that stage complained and said, you may be spending more money on the property, but it is less saleable, and therefore I want to protect my property. Every mortgagee knows that there are protections that he has to look after from time to time during the term of the mortgage. And Mr . Speaker, when a mortgagee lends to a busine ss concern, I think that unde r this law as it stands today, and not as is proposed to change it, every mortgagee ought to make very sure that he knows that wages are paid, and that's not difficult.

Every mortgagee in his contract can require a couple of things; one, and that's not unusual - I'll bet The Bank Act provides for it - he should have a right to check the books of the borrower to make sure that wages are paid. He has a right to ask to see a certificate or an affidavit that the payroll has been looked after month to month. It's a contractual relationship; every mortgagee should do it. Th erefore, it doe sn't bother me th at we are endangering that security by this legislation. What does bother me, Mr.

Speaker, and it's very seldom it occurs in this sophisticated day and age, in the case of an unincorporated individual operating a business who does not pay his wages, it both ers me somewhat to think that the mortgagee who loaned him money on his own home, who may not even know what business he is in, is endangered. That's always both ered me somewhat and I would have liked to have seen some refinement in that respect. I think also that there's a problem when there's a sale of a prop erty th at take s pla ce.

I, as the mortgagee may be quite satisfied that I know that owner and I'm satisfied he's going to pay wages, or inde ed he doesn't emplo y anybody, but if the property changes hands, who knows who will be the purchaser. So there is a concern there I have that I admit to having, but as I say, on balance, I opt for the law as it is today and rather than the way they are trying to change it. Mr. Speaker, I want to point out, as did the Member for Fort Rouge, and she was right.

You don't bring in legislation you don't need, and you don't have to exclude other legislation if you are stating that what you are putting into legislation is the law - and that's what the Minister of Labour said. Her que stion is one I can't answer. He r question was, why do you exempt this

section from all other Acts by stating a priority of a registered mortgage ahead of wages, if the law is that wages do not get ahead of a mortgage? Why bother to do it? She's asked the question; I can't answer it. Mr. Speaker, nevertheless, I want to point out one more thing - what mortgagees are in danger of. Mortgagees are in danger of mechanics' liens. Did you know that, Mr. Speaker?

The law of mechanics' liens - and when I spoke earlier on The Builders Act, Bill 90, I said that it is a very complicated law, I don't pretend to know it well, and few lawyers would claim to know it well - but my recollection was that a mechanics' lien can come ahead of a registered mortgage, the moneys on which were advanced well before the work was commenced, if the value of the 6187

Tuesday, 29 July, 1980 work done by the lien claimant improved the value of the property beyond that of the amount owing on the mortgage, the principle being that the work of a workman or a supplier of material should no t improve the value of the mortgage at the expense of the supplier of the goods or services. Let me tell you, Mr. Speaker, I'll read to you a

section of The Mechanics' Lien Act: If the land upon - I hope I'm reading the right section, it's

Section 5(3) - or in respect of which the work is done, or materials, or machine ry are placed, is encum bered by a mortgage or other charge existing or created before the commencement of the work or of the placing of the material or machi nery upon the land, if that's the case, the mortgage or other charge has priority over a lien under this Act. Now, the important words: to the extent of the actual value of the land at the time the impr ovements were commenced. In other words, Mr.

Speaker, from the time the work was commenced, any improvements made to the land to carry the value beyond what the value was at the time that the work was commenced, that would get in ahead of the mortgage. That's my understanding of the law and that's what I find is in The Mortgage Act. Mr. Speaker, although I -said publicly in this House that I was not going to look at The Buil ders Act, I have alre ady broken my statement, because 10, 15 minutes ago I looked at Bill 90. And what do I find in Bill 90, Mr. Speaker?

The same provision as I' ve just read from the present Mechanics' Lien Act, with a slight difference in wording, but the same principle in

Section 20( 1) of the Act which the Attorney-General brought and is not proceeding with. Mr. Speaker, there are laws by which a mortgage will stand second to subsequent claims. That to me, and I believe I proved it in The Mechanics' Lien Act and in the examples I gave, which are part of the contract, negates the statement baldly made by the Mini ster of Labour, which does not mean, Mr. Speaker, that there are circumstances where this law would not apply. I spelled that out; the circumstance of bankruptcy.

Once there's a bankruptcy, then the federal bankru ptcy law takes hold and I guess that wages rank, where ver they are put, in the bankruptcy law as it may be changed from time to time. I would hope that with this example in this debate, there may be members of parliament who would be trying to change the bankruptcy law to give greater protection to the wage earner. But, aside from the bankruptcy law and aside from the special rights acquired by banks under The Bank Act, I am not aware of any justification for the Minister of Labour's statement. I protect myself, Mr.

Speaker, by saying I did not have an opportunity to investigate the law. I may be wrong, but I don't think I am, there is nothing that was said by the Minister of Labour that convinces me that I'm wrong, and that this law, as it was, was a law which was enforceable except under those circumstances. The reason I'm saying that, Mr. Speaker, is that I want to change the Minister of Labour's bland acceptance that the law isn't right anyway, so why fool people? Let him, as Minister of Labour of a Conservative government, say I opt to prote ct the registered mortgage and, Mr .

Spe aker, I will not only understand it, I will have some degree of empathy in that kind of circumstance that I described. It always did bother me a little bit, Mr. Speaker, and as I say, on balance, I opted in favour of this law. I would give much more credit to the Minister of Labour if he said, it's not the law, so why talk it, but I believe that what the Conservative government is doing is right. As I say, if he said he believes it is right, I would respect his opinion because I understand the whole concept that a mortgagee, a registered mortgage, needs protection. I understand that.

I have opted in favour of the other way, but I clearly understand that point of view. I fault the Minister of Labour for not directing himself to the principle of the bill, to the principle of the legislation, but coping out by saying, well, it's not effective law. I believe it is effective law, with those two exceptions I gave, and I would like very much, Mr.

Speaker, in due course, tomorrow, next week, for the Minister of Labour to do me the courtesy and give me the citations of the cases he quoted so I can look them up in the future, and for my own satisfaction, see whether I'm right or wrong in the way I postulate it what I believe the law to be. MR. SPEAKER: The Hono urable Me mber for lnkster. MR. GREEN: Mr. Speaker, I want to indicate that I, too, have had misgivings about the law. I don't think, Mr.

Speaker, that there is anybody in the House, although we can hurl accusations at each other, who is happy or callous about hearing that a person has lost a pay cheque, his next pay. It has happened; it has happened under scandalous circumstances, Mr. Speaker, and I have to act for people who have been under those circumstances.

Th erefore, every effort should be made - and I consider it to be a major priority - that every effort has to be made to see to it that one payroll - because I think if a man works beyond getting paid in one payroll, he starts in risk­ taking himself - but that one payroll is something which we should make every effort to protect. That, Mr. Speaker, was the philosophy of the legislation that dealt with mortgages. Mr. Speaker, I think that we should only pursue this legislation as far as it goes, and that's why I have some misgivings about what has been said tonight.

To suggest that this Act, as it stands now, not the bill, will protect a worker's wages over a secure debt of any kind in a bankruptcy proceeding is not true, and we should not be running around telling the workers that is so. Mr. Speaker, I've heard it said here that workers have been losing wages in bankru ptcies and that this legislation is going to protect them, the legislation now on the books. In bankruptcie s, there will be no protection. These wages have never - (Inte rjection) - well, Mr . Speaker, I heard that said when I was in the House.

I heard one of the members of the House get up and say th at worker s have been losing wages in bankru ptcies and that this legislation is somehow going to make that more possible. This legislation has never protected a worker in any bankru ptcy. It has never protected a worker in any bankruptcy. But, Mr. Speaker, it has given certain protection. The Member for St. Johns has indicated that there is a way in which the mortgagee starts protecting the worker. Because what will happen, it's not the money lender who is going to lose by this. The mone y 6188

Tuesday, 29 July, 1980 lenders will start doing exactly what they have to do, just as they retain 15 percent for Mechanics' Lien and retain so and so, the money lender will now say, if there is a loan of 10 0,000, your payroll is 5,000 a month, 10 ,000 will be he ld back, you will be advanced 90,000, double your payroll will be held back, you are going to have to send us every month an indication that your payroll is paid. The money will be put in a trust account; you will earn the interest. If there is a lack of payment, we will be able to go into the money and pay the man.

And that's good, really, I think that's good. Every time they came before committee, Mr. Speaker, I said to them, look, if you know this is the law and there is no bankru ptcy, you can take the same steps to protect your position vis­ a-vis wages, as you do with respect to taxes, as you do with respect to mechanics' liens, etc. Th erefore, it does, Mr. Speaker, offer some protection, and the proof that it offers some protection is that it's being repealed. The Member for Fort Rouge says: If the law has not been changed, why are we enacting the bill? There is a piece of ultra vires legislation on the books.

That has happened before, that ultra vires legislation is on the books but, Mr. Speaker, it is not true that it is totally ultra vires. There is some effect of it, and that effect of it, Mr. Speaker, and my main criticism with the government is not the repeal of this legislation. My main criticism is they've come in and said the le gi slation doe sn't protect anybody, therefore, we're repealing it. It would seem to me, Mr. Speaker, that a conscientious government would say the legislation doesn't protect anybody, we are bringing in le gi slation to prote ct them. (l nterjection)- Mr.

Speaker, my friend says you can't. I'm going to give you some sugge stions that you can. Mr. Speaker, the worst cases I have had, the most pathetic, are when a worker comes in and applies himself to a job for a period of two weeks and at the end of the two weeks does not get paid. Those are the most pathetic cases. Mr.

Speaker, I think that it would be relatively simple to require - and here we get into the requirements and bureaucracy, and I know I'm dealing with a problem, but I say that the Minister should have directed his attention and his department's attention to it - to say that where there is an employer who does not have assets and liabilities which can guarantee a month's wages, that he has to furnish a bond with the Department of Labour, sufficient to take care of one payroll. One payroll. It wouldn't be a big bond. It would not be a big bond because the chances that he won't make the payroll are also very remote.

When one talks of the fact that workers have lost wages, it is also the fact that the vast majority of workers have been paid, so the percentage we are talking about is a small percentage and it would probably be a very small expenditure for a bond to guarantee two weeks' wages. I think th at would be far mo re imp ortant, requir ing a bond of that kind than requiring a bond from a travel company that a person is going to get back and forth to Winnipeg, when we talk about bonds. So there are ways, Mr.

Speaker, to do it, and what really reject is the Minis ter coming in sayi ng: "You've trie d a way, it's ine ffective, therefore we'll repeal it, but we have nothing to offer." I think that this Act is a proble m. For people to pretend that it is not a problem is not so, Mr. Speaker. I have New Democratic Party constituents, some of them move from lnkster Boule vard to East Kildonan. They sell their house to a contractor; they sell their house, their life savings for 40,000.00.

They take back a mortgage of 35,000 on which they are going to colle ct interest for the rest of their lives and have that as somewhat of a pension plan. They sell their house to a contractor. The contractor has a payroll of 10 workers; the 10 workers are not paid. There is 20,000 payable prior to their mortgage and they have sold the house expecting 35,000 in return. MR. CHERNIACK : The cont ractor incorpor ates himself. MR. GREEN: Mr. Speaker, the honourable member says every contractor incorporates - he could also buy the house in the name of the corporation. I mean, there are different ways.

But the fact is it needn't be a contractor. He could have sold his house to a restaurateur, and the restaurateur's house is liable on the mortgage which he has sold to a New Democrat who has moved to East Kildonan, who said you passed the law that says that I have lost my 35,000.00. There are problems. Let's not build this case up, the workers against the money lenders. There are problems, and I suspe ct that the government has not considered those problems and I criticize them for not considering those problems.

I say that the legislation could be refined, that there could be things done with it, but in the meantime, it affords some protection. There are dangers. They might have

an Act brought into this House for the relief of Joe Jones who sold his house with a loss on the mortgage. We could have that. Let's look at the problem. I say, Mr. Speaker, I'm going to vote against this bill. I do so with the knowledge that I'm not voting against it that it is a horrendous attack, but the bill shows a lack of concern. I believe that there is a way of protecting one payroll. There must be a way. And there must be a way of requiring a bond for one payroll. It could be the Department of Labour that sets up a fund. We do it for Unemplo ym ent Insur ance; we have a Unemployment Insurance Fund.

Why cannot there be a one-payroll insurance fund so that people who lose their wages as a result of working, get that money? That's far better than attac king registered mortgages, Mr. Speaker, I will be the first to admit it, because a mortgage is an advance. Why do you do it better equity by stealing from one and giving to another? The mortgage e ha s given some body 10,000.00. He's given it to him; the worker is given the wages. They both should be entitled, one to the return of his money, the other to the payment of his wages.

So it is a problem, and I can see that it's a problem, and I tell the Minister that the answer that it's not effective is not an answer. First of all, it must be effective, otherwise you wouldn't be repealing it. I believe it is effective; I believe that mortgagees can protect themselves, but do something effective. Is it more effective to say I repeal the bill? That is also ineffective; do something effective. MR. SPEAKER: The Honourable First Minister. 6189

Tuesday, 29 July, 1980 MR. LYON: Mr. Speaker, my contribution to this debate, like that of the Member for St. Johns and I'm sure the Member for ln kster, was unanticipated. I rise merely to say that in the last two speakers, we have heard, I think, a reasoned exposition of the problem following upon the remarks that were made by the Minister of Labour. I'm not going to say any thin g about the speech of the Me mber for Churchill because that was not a reasoned exposition of the problem. The Member for lnkster and the Member for St. Johns, and I give the Member for St.

Johns full credit, point out the problem that faced their government in trying to enact a piece of legislation which was imperfect. The courts have said, Mr. Speaker, that notwithstanding the good intentions of the New Democratic Party to try to do what they were doing, they conferred a paper right upon the workers in Manitoba. My honourable friend for St. Johns and I'm sure the Member for lnkster know that as well. The courts have said that the so­ called right conferred under the existing legislation before this amendment is brought in confers no right at all. Furthermor e, Mr.

Speaker, I just make this brief point, if I may, are we acting in a vacuum? Are we acting without the benefit of proper legal advice? No. We are acting, Mr. Speaker, and I use them not as a shield or a defense at all, but we are acting after full and careful consideration of this matter by the Law Reform Commission of Manitoba. Now, surely to heaven, nobody is suggesting, Mr.

Speaker, that the Law Reform Commission of Manitoba, and I am not going to get into the wild rhetorical kinds of class arguments that were bruted about the House earlier by the Member for Churchill, because really that kind of nonsense has no place in a reasoned debate on what is a difficult topic. Of course it's a difficult topic because we have at stake, under the legislation that was passed back in 19 75 by the previous government, it, because of the deficiencies in it, it conferred, first of all, as others have said, only a paper right; and secondly, -(I nterject ion)- The courts have said it, Mr.

Speaker, and I can assure my honourable friend the Law Reform Commission, in effect, have said the same thing, based on the judgme nts that ha ve come down on th e B.C. legislation and the Manitoba legislation. So I can say to my honourable friend that what we have to do, then, is to ensure that we elevate that right of wage lien as high as we can without destroying the whole fundamental system of the Torrens system upon which titles in Manitoba, by and large, except those that are under the old system, rest and reside.

When I asked across the House the question, what about the Torrens system, when the Member for Churchill was speaking, I know the Member for St. Johns, I know the Leader of the Opposition, some of the other members in the House knew exactly what I was speaking about. The Member for lnkster knows exactly what we are talking about in terms of priority of liens.

And the fundamental gua rantee that is contained in a title that is issued by the land titles system in Manitoba, which is a guaranteed title and every working man and woman in Manitoba who gets one of those titles, with respect to his premises, with respect to his home, with respect to his summer cottage, feels that he has a title that is guar anteed by the government. Along comes the legislation of 1975, which throws into jeopardy, because of the word ing of tha t legislation, which th rows into jeopardy the security of title under the Torrens system.

And that is why the government is being advised by the Law Reform Commission, that is why the other authorities who have looked at this matter, the advice that we can take internally, that is why lawyers who know anything at all about the land holding system in this province are aware that this kind of legislation has to be brought in to clarify and to make certain that what was conferred and turned out to be only a paper right, at least is given some elevated priority in terms of the nothingness that in effect exists under the present legislation. Mr.

Speaker, I hope I am true to my word, I am not trying to perpetuate the debate, I merely rise to say that the remarks of the Member for St. Johns, the Member for lnkster, indicate an understanding of the problem that the Minister of Labour spoke on tonight, that I have attempted to address very briefly.

It is not, as the Member for lnk ster said, and I concur with him, it is not a question of class against class; it is not a question of the mortgage companies against the working people; it is not a question of all of this rhetorical nonsense that we heard from the Member for Churchill; it is a hard and a difficult question of law which impinges upon your whole land title system in Manitoba. The Member for lnkster used a better example than, I think, has been used by the Law Reform Commission, with respect to robbing Peter to pay Paul, and that is exactly what you are permitting under the old legislation.

If it had been effective that is exactly what you would be permitting. People with registered claims, working men and women in this province with registered claims could have those claims wiped out under this imperfect legislation that we have. So we are moving ahead with this cla rifying amendment that is here. I think that the Attorney­ General, who may perhaps engage in this debate, would have some interest, and the Minis ter of Labour as well, in following through with the idea of the Member for ln kster. What other alternative means is there whereby you can secure one wage term for workers in Manitoba.

There has to be another way. To use the hackneyed expression, Mr. Speaker, you can't have a law which is going to throw out the baby with the bath water, which is going to put into jeopardy your whole land title system in this province, which is fun damentally important to every working man and women in this province. Don't try to say that you can do that because you're for labour and the government is against labour; that just doesn't wash, it isn't so. It's a dfficult problem. We're trying to deal with it in a reasonable way.

The kind of rhetorical flourish that I know is tempting from time to time is fine and dandy, but I suggest that it really doesn't come to gr ips with the problem, and that we've had contributions from the Member for St. Johns, the Member for lnk ster, that are helpful in looking at the problem. I commend the bill to the House because it is not anti-labour it is not anti the working man at all. It's an attempt to clean up a piece of legislation that has been contested in the courts since it was put into place in 19 75. It's an attempt to make sure that 6190

Tuesday, 29 July, 1980 every man and woman in Ma nitoba who owns property has some security to know that that title that they hold is not placed in jeopardy by legislation that does not do what it was intended to do back in 1975. So I suggest that if cooler minds prevail, as I am sure they will, that we can look at ways of bett ering the position of the working man in Manitoba, but not by the kind of rhetorical flourish that we heard tonight from the Member for Churchill.

That really doesn't bear upon the problem at all, and we should be bending our best efforts to ensure that the legislation that we do pass does give some kind of priority or some kind of protection to the average working man and woman in Manitoba, not at the expense of other average working men and women in Manitoba.

No more of this robbing Peter to pay Paul, because th at's precisely what tha t old legislation said, as mentioned by the Member for lnkster and in that succinct example he gave of a New Democratic Party supporter in his constituency mortgag ing his own hous e and findin g tha t somebody else could come along and take priority. That's as good as an example as you'll find. That's not anti-worker, it's not anti-class or anything at all. I suggest that we don't do any service to the working people of Manitoba by pretending otherwise. MR. SPEAKER: The Honourable Member for St. Johns. MR.

CHERNIACK: The Min ister, bel ieve, undertook to answer a question. The question is, was that Law Reform Commission Report that he referred to a publis hed report of the Law Reform Commission, which would therefore be in the hands of the public? MR. LYON: Mr. Speaker, I cannot say. I have seen the recom mendation that went to the Attorne y­ General. Perhaps the Attorney-General can answer it. I don't know if it's public or not. As I recall, it was in reference to some draft legislation on this matter that was previously considered. MR. CHERNIACK: Mr.

Speaker, in view of the fact that I would assume that the First Minister is familiar with that green-co vered publication cover for all Law Reform Commission published documents, whether the document he saw is in that form of a printed document with a green cover, in a form which is familiar, I am sure, to all of us. MR. LYON: Mr. Speaker, if somehow or other the word "report" crept into my comments, I should have said "letter" - letter from the Law Reform Commission to the Attorney-General on this topic. MR. CHERNIACK: One further qu es tion, Mr . Speaker.

It obviously cannot affect the vote, but could the Minister at least make it possible for all of us to see the actual "letter" he's referring to. As I say, it probably won't affect the vote, but at least we ought to see, Mr. Speaker, what it is that he has been referring to in his speech. MR. LYON: Mr. Speaker, I think the Attorney­ General can refer perhaps more accurately to this matter than I can, because he's more closely familiar with the letter in question. MR. SPEAKER: The Ho nourable Memb er for Winnipeg Centre. MR. BOYCE: Mr.

Speaker, I don't know a tort from a tart or a Torrens title, but nevertheless the Minister of Labour, in making his presenta tion, I think precipitated the type of debate which has followed. The First Minister said in his few remarks that there was a paper right. I didn't hear anybody on this side say that it was only a paper right that was granted. In fact, in his very examples that he used referring to the Member for lnkster, example, the very fact that in some instances wages can supersede a mortgage right does cause problems. Mr.

Speaker, my remarks are going to be very brief in this regard, but it is as a lay member that I speak, and the principle is being lost sight of. It was raised by the Member for lnkster, but I wish the Member for lnkster was here, because I felt like I was getting a lecture from him. I don't know whether I was asleep; I didn't hear anybody around here say - I may have been asleep, as I say - say that the Act as it exist