May 10, 1999 Alberta Hansard 1577 Legislative Assembly of Alberta Title: Monday, May 10, 1999 8:00 p.m. Date: 99/05/10 [The Deputy Speaker in the chair] THE DEPUTY SPEAKER: Please be seated. head: Government Bills and Orders head: Committee of the Whole [Mr. Tannas in the chair] THE CHAIRMAN: Good evening. I’d like to call the Committee of the Whole to order. For the benefit of those in the gallery I would explain that this is the informal part of the Legislative Assembly. Hon. members are allowed to move around and do not have to sit in the seat assigned them.

They must speak from the seat assigned them, but they don’t have to sit there, so it’s a chance for them to quietly visit and share information. Bill 34 Partnership Amendment Act, 1999 THE CHAIRMAN: The hon. Member for Grande Prairie-Wapiti. MR. JACQUES: Thank you, Mr. Chairman. It’s my pleasure to open debate on Bill 34 at the committee stage. I will be very brief. I just quickly wanted to refer to some issues that were brought up by the members for Calgary-Buffalo, Edmonton-Norwood, and Edmonton-Riverview during second reading debate.

There are some issues and some questions that they raised which I would like to comment on at the outset. Mr. Chairman, one of the questions was with regard to registration costs, and I would point out that Bill 35 at page 80 identifies the proposed fees, at this point $150 for registration, but of course these charges will be reviewed in the course of Bill 35. There was also a question with regard to: why only the eight professions?

I believe I had spoken to that at the introduction, but the bottom line of it is that there are only eight professions in the province of Alberta that do not have the ability to incorporate under some form of particularly standard business corporation, and hence only these eight particular groups do not have the ability to form some limited liability with regard to their personal assets. There was also a question with regard to multiprofessional partnerships in terms of LLP.

Again, the limited liability partner- ships will be restricted to those professions that are designated pursuant to Bill 34 and only where permitted by the governing body; in other words, there can be no multi cross-partnership in terms of business entities that are not recognized under Bill 34. With regard to the issue of the registrar. That will be handled by the registrar as the registrar of the corporations or a deputy registrar of corporations which is appointed pursuant to the Corporations Act. There will be no add itional staff. This will be handled by existing staff.

There was also a question: why no reference to Bill 22 in this particular legislation? It was an item that was identified early in the drafting stages, but the bottom line is that Bill 22 at this point in time is proposed legislation, and if we make the assumption that Bill 22 is passed, particularly as it relates to the four schedules that cover four professional groups covered under Bill 34, then at some point in time there is going to have to be a provision in terms of the Legislature, most likely under a miscellaneous statute amendment.

There was also an issue with regard to the 120-day notice period, and under that the registrar would be advising the partnership if they had not filed an annual return within the 120 days that the registra- tion of that partnership could very well be canceled. There were also some issues raised as it applies to the Ontario act vis-a-vis the Alberta bill, a question about the description of the liability of the negligent partner. Bill 34 really does the opposite.

In other words, what it does is set out the conditions under which a partner’s personal assets would not be subject to the provisions of any actions that were taken by negligent partners where that particular partner did not have knowledge or any supervision involved in that particular item. There was also an issue with regard to extraprovincial partner- ships. That is addressed in sections 79.94 and 79.96, which set out clearly the guidelines and the rule s with regard to extraprovincial limited liability partnerships.

The question with regard to assets of the partnership in the event that there was a liability claim. This act only applies to the personal assets of the partner. In other words, the assets of the firm or the assets of the partnership would be available for any action, as they are today. I think that covers the main questi ons or issues that were raised, Mr. Chairman, and I look forward to further discussion. Thank you. THE CHAIRMAN: Are there any comments, questions, or amend- ments to be offered with respect to this bill? The hon. Member for Edmonton-Calder. MR. WHITE: Thank you, Mr. Chairman.

This is a particularly good bill. It seems to be well researched, well drafted. The member presented it in a succinct fashion and in fact answered all the questions save one. First of all, I should say for the record that this side is to support this bill, and we understand that the limited liability partnership would remove liability from a partner when another partner, employee, agent, or representative was held to be negligent of wrongful acts or omissions or malpractice and misconduct.

All of that being said is the context of the bill, and in fact I understand the reason for no further inclusions of other professional groups is other professional groups that are defined in the acts of the province of Alberta as being self-governing are able to limit their partnerships under their existing bills as it is , so therefore they need not be required twice. In fact, it would be redundant and could cause some conflict and some misunderstanding at some point. So we under- stand that.

Now, there are exceptions to the rules of separating liability and having the liability run with the offending partner, if we can use that terminology, that was found so guilty in a court or found so liable in a court of law, and that’s if another partner knew of the malpractice while it occurred and took no action. I suspect that part of the act will be tested more than once. The provisions that are still under question, certainly not the 120- day period – we understand that – and setting out prescribed times for filing of reports. We have no difficulty with that either.

Insofar as the liability of the partnership, the partnership would be liable only insofar as the assets would allow. I understand that if a successful suit was filed on the partnership individually and separately, the assets of the partnership would be depleted first and then would go to, in this case, the responsible partner and not to the other partners. If that is correct, then we have no further questions, and I understand the mover would give the nod to that. You would? It has been confirmed. Mr. Chairman, we have no further arguments with this Partnership

1578 Alberta Hansard May 10, 1999 Amendment Act of 1999, so Bill 34 should be passed with all haste and get on with other business, sir. Thank you. 8:10 [The clauses of Bill 34 agreed to] [Title and

preamble agreed to] THE CHAIRMAN: Shall the bill be reported? Are you agreed? HON. MEMBERS: Agreed. THE CHAIRMAN: Opposed? Carried. Bill 12 Domestic Relations Amendment Act, 1999 THE CHAIRMAN: We have before us for our consideration government amendment A1 as moved by the hon. Member for Calgary-Lougheed. Hon. Member for Edmonton-Riverview, you indicated you didn’t have a copy of the amendment? MRS. SLOAN: No, I don’t appear to have, Mr. Chairman. I’m trying to find it. THE CHAIRMAN: Perhaps your colleague has one. MRS. SLOAN: Would this be the amendment? THE CHAIRMAN: It begins “Domestic Relations Amendment Act.” A

Section 2 is amended . . . B

Section 5 is amended. It was moved on the last day of consideration of this bill. MRS. SLOAN: Thank you. That’s fine. I’m prepared to speak to this amendment to Bill 12, particularly the amendment proposed to

section 2 in terms of amendments to

section 1(2)(b)(ii) by adding “marriage-like” before “relationship of some permanence.” To begin this evening, Mr. Chairman, I’ve received a number of correspondence from constituents with respect to this issue, and I would like for the record to enter their thoughts and remarks in the context of the amendments proposed. The first letter is from Irving and Joyce Hastings, and the letter, in fact, was addressed to the Premier. I’d like to just recite briefly, Mr. Chairman, specific directions that they’ve provided to the government with respect to the amendments of this bill.

The hallmark of a mature society is a deep and residing respect for human rights. Human rights provide all Canadians and Albertans with an opportunity to strive for self-fulfillment. Along with these human rights come responsibilities. We would urge that your government enact legislation to achieve the following:

(1) Make gay and lesbian couples responsible to their “spouses” under the same law as those governing heterosexual couples.

(2) Make it legal for same sex couples to legally adopt children, including their partner’s children.

(3) Provide same sex pe nsion benefits to gay and lesbian couples. Discrimination is not acceptable in a free and diverse society as we have in Alberta.

(4) Provide for legal relationships and obligations for same sex couples. This recognizes the innate sexual orientation of gay and lesbian people. In conclusion, we strongly object to the use of the notwith- standing clause. Now, if I interpret the amendment proposed properly, Mr. Chairman, “marriage-like” is to be added before “relationship of some permanence.” I recall the debate that we had at second reading with respect to what was the definition and application of this section.

Certainly there was significant concern expressed, I believe on both sides of the House, that the bill as it currently stood did not reflect respect for the Vriend decision and the equal application of rights to gays and lesbians. I have received another piece of corres pondence from Leo Campos, also Gail, Sara, and Hector. This was by e-mail on the 17th of March, and they shared concerns similar to the Hastings. Now, I’m not sure if the amendments will unequivocally address their call, that the Domestic Relations Act currently excludes same sex couples from espousal support provisions.

To no longer be discriminatory legisla tion, this Act must be revised to include same sex couples. So again, Mr. Chairman, whether or not it’s the intent of this amendment to actually apply “marriage-like” or “relationship of some permanence” to partners, couples of same-sex orientation, I’m not aware. I don’t believe that we had the opportunity to hear that discussion of intent when the amendment was introduced, but we may have the opportunity to hear it at some point later this evening. There was as well a model proposed by Julie Lloyd, also of Equal=Alberta, that was sent to me.

This model proposed “that there be the following categories of relationships,” the first being 1. Married persons (“spouses”), and 2. Persons (“partners”) who have either:

a) entered into a contractual agreement to be treated as “spouses”, or

b) cohabited for three years in an intimate relationship or in a relationship of some permanence if there is a child of the relation- ship. In this particular model, Mr. Chairman, the author chose to use the word “intimate” instead of “marriage-like.” The writer expressed the concern that the judicial

interpretation of “marriage-like” might exclude same-sex couples because of the common-law definition of marriage contained in such cases as Hyde versus Hyde. Lloyd goes on to say that this way we can allow people, particularly same sex couples who do not have access to marriage, to start rights and obligations quickly. The proposal allows for the creation of a “de facto” status for persons who do not comply with formality and thus provide redress for hardship without discrimination. Mr.

Smith, in his e-mail to me, went further, to say: The debate around equality issues for persons of the gay and lesbian community is a painful one to endure from the point of view of members of the community and from the point of view of families and friends of that community. I would suggest that these viewpoints are not always considered when the debate is focusing on words like “normal” or “moral”. The moral highground taken in the past has been to pit the “family” and the “erosion of family” against the right to fair and equitable treatment under the law.

I would like to remind you that we are members of families, Alberta families and we have stood by those families with the same love and devotion as other Albertans. I would remind you also that some of us are parents and raise our families to be responsible and contributing members of Albertan and Canadian society. It is time for everyone to take a step backward, look closely at the issues and to create law that is inclusive of all Albertans regardless of race, colour, religious belief, cultural background, social and economic status, sex and sexual orientation.

I’d like to formally thank all of these citizens for their submissions to the members of the Assembly, not just to me specifically. I’ve enjoyed providing those on the r ecord this evening and will look forward to the further debate of this bill. Thank you.

May 10, 1999 Alberta Hansard 1579 8:20 THE CHAIRMAN: The hon. Member for Calgary-Buffalo. MR. DICKSON: Thank you very much, Mr. Chairman. You know, some of us were beginning to wonder when Bill 12 was coming back. I note that we last had a chance to speak to it on April 28. At that time I think I’d made some observations relative to the amend- ment which suggested that if it weren’t for two things, the pending M and H decision, which the Supreme Court of Canada was expected to bring down I think two weeks ago – now I guess every day brings it a little closer.

Will we see it before we rise here, before we break for the summer? I don’t know. Maybe that was the government’s strategy. I know the Member for Calgary-Lougheed, probably a very able strategist, had been hoping that maybe we would’ve had some further direction from the court to bolster her hand in maybe expanding the government amendments. But we don’t have that, so we’re going to have to pro ceed as best we can, just doing what we think is right in terms of ensuring all Albertans get equal treatment.

The members may recall that when we had the current amend- ment, A1, introduced by the Member for Calgary-Lougheed, she talked about valuable input from the Canadian Bar Association. I think she mentioned the family law sections, north and south. They are an excellent source of information, but I think, as I pointed out last time, Mr. Chairman, it ignores completely the issue that a significant number of Albertans would be discriminated against if we simply accepted this amendment and did no more. So I’m going to suggest a bit of a Faustian bargain to members of the House.

I think we might even want to consider supporting this amendment but on the basis that we would then embrace the next amendment that is coming forward, which I can assure members will remedy the area of deficiency in A1. The amendment coming forward is one that’s going to fill the gap that’s left and that will ensure that this is not just rest ricted to those Albertans living in opposite-sex relationships, be they common-law or in a traditional marriage. Under the provincial Marriage Act it’ll add the additional provision. I think it would be tough to argue . . . [interjection] I’m sorry, Mr. Chairman.

THE CHAIRMAN: I was just wondering if this is a subamendment or if it’s a separate amendment. MR. DICKSON: No. I’m speaking to the House amendment that’s A1. THE CHAIRMAN: But you’re telling us that you’re going to put an amendment? MR. DICKSON: Yes. Yes. And I’m indicating that my inclination is to support the existing amendment before us because I think it in a very modest way makes some improvement to Bill 12. But I’m going to say, Mr. Chairman, that I don’t want any argument of estoppel, that if I support this amendment I will somehow have suggested that this completes the package, because it doesn’t.

I know we have the rapt attention, the absolutely rapt attention of the Minister of Community Develop- ment, who is saying to herself: how is it possible that my colleague from Calgary-Lougheed would have left anything out? That may be a conversation these two members have had before and will have again, because I know both of them want to do the right thing. That’s why I’m counting on the support of both those members when we get to the next amendment. But on the one in front of us, I think it tries to bring us more in to line with the Divorce Act, and that’s a good thing.

One of the problems I might just parenthetically add while we’re talking about this is that this demonstrates the idiocy of having so many different statutes dealing with family law, Mr. Chairman. That’s why I prepared the Family Law Reform Act, which came in as a private member’s bill a number of years ago but didn’t get debated. The point of it was to give the government a bit of a cue, a clue, an urging, a suggestion – heck, we wrote the bill for them – to basically bring together these different family law statutes into a single statute.

You know, we see here this modest effort to try and square the Domestic Relations Act as much as possible with the Divorce Act and import some of the same tests. A wonderful idea, but it demonstrates how awkward and confusing it is when you have all of these different statutes dealing with the area of family law. I’m going to urge members to support the amendment we have in front of us but to recognize that it is extremely limited.

Our main work tonight, I think, will be seeing not just how we ensure that we have a greater degree of congruence with procedures and processes under the Divorce Act but how we ensure that all Albertans get equal treatment. So those are the comments I wanted to make in concluding debate on amendment A1, and I encourage members to vote for it. Thanks very much. [Motion on amendment A1 carried] THE CHAIRMAN: The hon. Member for Calgary-Buffalo. MR. DICKSON: Mr. Chairman, we’ve made a modest improvement to a badly deficient bill.

Now we get down to sort of the meat-and- potatoes part of the agenda. [interjection] That was not a disparag- ing comment about the other amendment. I just said that it didn’t cover enough ground, Minister of Community Development, through the chair. So what we now have is a two-page amendment, and just before moving the amendment, Mr. Chairman, we want to be real clear in terms of what we’re doing. The amendment is in parts A, B, C, D, and E. To economize on the time of the Assembly, I propose that we deal with it as a block, be able to debate it as a block and vote it as a block.

Now, if there were problems and people wanted to do it severally, I’d be happy to sit down and hear that argument. But I think at this point that just ma kes more sense in dealing with it, because all of these elements on the two pages we have in front of us really speak to a single deficiency. So that’s my proposal, Mr. Chairman. I don’t hear strong disagreement, and I hear some support for dealing with those amendments in a block. I’d just proceed to go through them. I’m moving that Bill 12 be amended as follows. In A,

section 2, the proposed

section 1(2) is amended by adding the following after clause (b): (c) “partner” means (

i) a party to a common law relationship, or (ii) either of 2 adults who have entered into a written agree- ment, duly executed before 2 witnesses who then execute affidavits of execution, with the intention of creating legal obligations and duties pursuant to this Act. In B,

section 5 is amended in the proposed

section 16.1 by (a), adding “partner or” before “spouse” wherever it occurs, and (b), by adding “partners or” before “spouses” wherever it occurs. In C the following sections are amended by striking out “spousal” wherever it occurs:

section 3 in the proposed

section 7;

section 4 in the proposed heading to

part 3;

section 5 in the proposed

section 16.1;

section 6 in the proposed

section 20.

1580 Alberta Hansard May 10, 1999 In D

section 7 is amended in the proposed

section 25.01 by (a), in subsection (1) adding “Partners or” before “Spouses”; (

b) in subsection (2)(

c) by adding “partner’s or” before “spouse’s” wherever it occurs; (

c) by adding “partner or” before “spouse” wherever it occurs; (

d) by adding “partners or” before “spouses” wherever it occurs. Part E.

Section 8 is amended (

a) by striking out “common law” and substituting “partner” and (

b) by renumbering it as

section 8(1) and adding the following after subsection (1):

(2) A partner may not commence the initial proceeding to enforce a right or obligation arising under this Act more than 6 years after the dissolution of the relationship. That is amendment A2 that I’m moving this evening, Mr. Chairman, and if that’s in order I propose now to describe why I think this amendment is important. 8:30 Mr. Chairman, there are at l east two reasons for putting this amendment before the members. The first one would be this, that it is an attempt to ensure that all Albertans in similar circumstances have access to courts and to legal remedies. The Domestic Relations Act,

part 3 and

part 4, allows currently a spouse, somebody in an opposite-sex marriage, to seek a protection order or a support order, and what the government has done with Bill 12 is come along and say: we will expand that b ecause the courts have told us we must under

section 15 of the Charter of Rights and Freedoms. The courts have said that there must be provision for people living in common- law relationships. There’s a lot of people I think in the Airdrie community who would be interested in these kinds of relationships, and people living in every constituency in this province will have an interest in this. I think every MLA in this Chamber will have some people who will benefit from this amendment. What we’re proposing to do now is say that we have in effect two categories of people who can apply to the court. Mr.

Chairman, the first one is those opposite-sex partners in a regular marriage sanctioned under the provincial Marriage Act. Now, we have a second category here which is much broader than what the govern- ment envisaged in Bill 12. What we’ve done with this amendment is said that the other person that can apply is a partner and that can be a partner in either a common-law relationship of any gender, same-sex or opposite-sex – it doesn’t matter – or one of two adults who’s entered into a written agreement duly executed before two witnesses who then execute affidavits of execution.

You know, there were probably people in the far east part of the province who could benefit from this kind of provision. I know that the Minister of Energy regrets ripping up those amendments before we’d even gotten to hear your argument on it. Point of Order Factual Accuracy DR. WEST: Point of order. Mr. Chairman, I was sitting here minding my own business. Under 23 (h), (i), and (j), impugning whether I ripped them up. He has no idea, and he makes reference and reads it into Hansard, and I think that’s creating a disturbance in the Assembly that’s uncalled for during debate. THE CHAIRMAN: On the point of order.

MR. DICKSON: Well, Mr. Chairman, I witnessed the minister with some to-do ripping up two pieces of paper. If it was not the amendment that was just circulated, I want to apologize to the Minister of Energy right now. If it was not amendment A2 he was ripping up, then I withdraw the comment I’ve made, Mr. Chairman. THE CHAIRMAN: Okay. The hon. Minister of Energy has risen on a point of order. I would concur that imputing a motive to tearing up a piece of paper – we all sit at our desks and tear up papers – I think is . . . DR. WEST: I tear up a basketful a day. THE CHAIRMAN: Order, hon. member.

That’s an exhibit, and we don’t need that. The point has been made, and you’ve apologized and withdrawn the remark. We can proceed on amendment A2 to Bill 12. Debate Continued MR. DICKSON: Mr. Chairman, I was going to talk about the story of the human paper shredder, but I’m not going to go down that road. In any event the point of the amendment package was this. It’s possible for somebody living in a same-sex relationship to have equal access to the courts, to the remedies under

part 2 and

part 3 under the Domestic Relations Act in one of two ways. One way would simply be to be a party to a common-law relationship, and that has been defined in another part of the act; in other words, somebody who’s cohabited for a period of three years. Or it could be two people who go down to the Willson stationery store or any other stationery store, get a very simple affidavit of execution, a very simple agreement. I envisage that it would be a

schedule to the act. It would be available on the Internet. You could access it on the Leg. Assembly web site. You simply sign this very simple agree- ment. The agreement would simply say: we’re entering into a mutually supportive long-term relationship; in the event of separa- tion, either party may have access to the court in

part 2 and

part 3 of the Domestic Relations Act. Pretty straightforward. Now, the reason for that is that if you’re a married person – and this is where we’re trying to find some parity, some equality – under Bill 12 you don’t have to wait three years. You simply go down and go through a form of marriage under the Marriage Act, and immedi- ately after the fact of marriage you’re entitled to the relief, or at least you’re entitled to make the application. When I say relief here, it just means making the application.

It will be for a court hearing the affidavit evidence and in some cases viva voce evidence to decide whether there would be appropriate circumstances which . . . THE CHAIRMAN: Hon. members, I wonder if we might have an opportunity to briefly revert to Introduction of Guests? HON. MEMBERS: Agreed. THE CHAIRMAN: Opposed? Carried. The hon. Member for St. Albert. head: Introduction of Guests MRS. O’NEILL: Thank you very much, Mr. Chairman.

It gives me pleasure to introduce to you and through you to members of this Assembly 11 Pathfinders of the Girl Guides of Canada from Sherwood Park who are seated in the members’ gallery with their leaders, Cathy Verdin and Mary Olekshy. I would ask them to please rise and receive the warm welcome of the Assembly. THE CHAIRMAN: Thank you, hon. Member for Calgary-Buffalo, for allowing that introduction. MR. DICKSON: Mr. Chairman, we’re always delighted to have

May 10, 1999 Alberta Hansard 1581 Pathfinders come in and watch the Assembly, and on behalf of my colleagues I welcome the Pathfinders here this evening as well. In fact I have to tell you that I had more fun when my daughter was a Pathfinder going along as a parent helper and teaching lashing and building a bridge one time with a bunch of Pathfinders than I ever had when I was a Boy Scout myself. It’s a great organization, and I hope they enjoy their time here. Bill 12 Domestic Relations Amendment Act, 1999 (continued) MR. DICKSON: Mr.

Chairman, ge tting back to the amendment, what we are trying to say is this: if you happen to live in a same-sex relationship, you should have an opportunity to be able to access remedies without waiting the three years by simply living common- law and bring yourself within the common-law definition, and that’s why we created this alternate forum. Now, we’d looked very carefully at the notion of a registered domestic partnership, and I know that the Minister of Community Development and her colleagues are looking at different ways of dealing with this.

We saw the report from the fences committee, and we know that there’s some attraction apparently to some government MLAs to this notion of a registered domestic partnership, but we opted not to go that route in these amendments. The reason would be this. In a province like Alberta for some people it could be extremely prejudicial in terms of their jobs, in terms of other aspects of their life to have to go down to the division of vital statistics and register their relationship so it becomes a public record.

We thought we’d come up with a proposal that would spare people that kind of public notoriety. 8:40 We thought it made sense to simply say: what could be more basic than a written contract between two people? It also has this advantage. It means that this would also be available to people in other kinds of arrangements. They don’t have to be sexual partners. In fact, Mr. Chairman, it could be two sisters who choose to live together. I think we all know and probably all have in our constitu- encies adults – it may be the adult son who lives with his mother; it could be two brothers who live together.

There are often people who for a variety of reasons form a mutually supportive, long-term relationship. Who are we to judge what kinds of relationships people can enter into? Secondly, why is access to the courts limited to only certain relationships and not to others? So this proposal frankly would allow those two 50-year-old sisters who live together in a supportive relationship to enter into one of these very simple written agreements. You know, they don’t have to enter into an agreement. I mean, it’s simply if they choose to do so. Mr.

Chairman, the proposal respects the right of Albertans to make their own decisions. To those members who think they may be more interested in a registered domestic partnership, I’d say: do we really need more bureaucracy? Do we really need more government forms? Do we really need more people lined up at the vital statistics office? I don’t think so. My caucus s upports a reduced government, a government that focuses only on services that must be provided, and that’s the reason we think it’s important to look at this sort of change.

The other thing – and this should be of great interest to the Provincial Treasurer – is that wh at this does is virtually makes our legislation Charter-proof. If this amendment were accepted, the best legal advice I’ve been able to obtain – and this is from other than the Minister of Justice, of course – is that this would effectively ensure in this amendment that there would be a very slim to none kind of opportunity for somebody to be able to convince the court to impugn our Domestics Relations Act. So I think it’s positive in that respect as well. The other point I’d make is this.

I may soon be coming to the end of my time, and I know there’ll be other people that will want to expand on the reason for the amendment. [some applause] Well, that’s encouraging, Mr. Chairman. Thanks very much. I’m going to take that as applause for the last point I made, and I want to thank members for showing that kind of sensitivity and that kind of appreciation for the point. Some people may say that this amendment is premature. It may be that some members may want to say: let’s wait and see what the Supreme Court of Canada does in the M and H case.

The answer of the Alberta Liberal caucus is: we don’t need to wait for a court to tell us what’s fair. We don’t need to wait for the courts to tell us that we have to ensure that all Albertans are treated in a fair and equal way. We don’t have to wait for the court to tell us that every Albertan should be able to get into their courthouse, that the doors should be barred to no particular group. So that’s why I think it’s frankly dangerous in part for somebody to say: well, we’ll wait for the court to decide.

What if the court in M and H said: well, we’re not going to redefine the word “spouse.” Would that be good enough? I think not, Mr. Chairman, and that’s the reason we put these amendments forward at this time. I hope members appreciate that we considered redefining the word “spouse,” because that was another option, or redefining “marriage.” The decision of the Alberta Liberal caucus is that we should and must respect the fact that most Albertans have a particular under- standing of what the word “marriage” means. I often use the example of my 70-year-old parents.

I think they are prepared to recognize and allow people to enter into their own relationships. But don’t try and tell them that “marriage,” a term they have known for their 70 years, is now going to mean something very different. Don’t try and tell them that the word “spouse” is suddenly going to mean something very different. They understand it to mean an opposite-sex c ouple, a husband and a wife. They understand marriage to mean something between a man and a woman. I think we can respect that and not put those people in a position where they are forced to deal with a different meaning.

So we’ve come around that and put forward an amendment which addresses that as well. So those are the reasons, Mr. Chairman, why we’d urge members to consider it. Now, I think if one looks at what’s going on in other parts of the country, we’ll see that there are changes in other jurisdictions. I think we’ve seen sexual orientation discrimination prohibited in virtually every province in Canada.

Alberta has not seen fit to actually amend the Alberta Human Rights, Citizenship and Multicul- turalism Act yet, but certainly as a result of the Delwin Vriend decision last year, now sexual orientation must be read into the act. It’s unfortunate that we don’t amend the act. Be that as it may, the model we’re putting forward in this set of amendments is one that can be used in a host of other statutes. You know, we tried to design one. I remember when the Premier said to us, Mr. Chairman – he looked and pointed at me and the Leader of the Opposition and others and said: tell us what your ideas are on this thing.

The government was in a jam, and they needed some help. Well, I don’t know how much more helpful we could be than this. We’ve put together a package. We’ve put together a model, and it’s a model that would work not just with the Domestic Relations Act but with a host of other statutes. I’m going to be interested to see if the Premier is prepared to take this model that we’ve offered him and run with it. Now, his idea of running may be running away from it, not running with it, but the point is that this is

1582 Alberta Hansard May 10, 1999 a model that in fact I think would serve this province very well. There may be members who want to move some subamendments to it. That’s fine; we’d be happy to speak to those and debate them. I certainly think this amendment is one that would allow us to be Charter-proof, and I think members should be keen on embracing that. Those are the comments I wanted to make. I’m going to sit back and listen with keen interest to the debate that follows. If there are government members that have opposite views, I look forward to hearing them and to a dialogue with those members.

Thanks very much, Mr. Chairman. THE CHAIRMAN: The hon. Member for Calgary-Egmont. MR. HERARD: Thank you, Mr. Chairman. I think we’re referring to amendment A2, are we? THE CHAIRMAN: Yes, A2, as proposed by the hon. Member for Calgary-Buffalo. MR. HERARD: Thank you. I’ve read this thing, and I’ve listened attentively to the debate and to the reasons put forward by that hon. member with regards to doing this. Now, I confess that I don’t have the background that he does in law, but something occurred to me as I was listening to this and reading this.

It seems to me that as things ex ist today, if two adults, be they same-sex or not, want to enter into a written agreement and duly execute that before two witnesses and then execute affidavits of execution with the intention of creating legal obligations and duties, they can do that now. Perhaps I’m missing something, but it seems to me that if two people want to establish, you know, something in law, essentially live up to responsibilities or take responsibilities for certain obligations, they can do it now. Why do we have to change

definitions to include certain lifestyles when in fact if those folks want to enter into agreements they can do it now? I don’t know if the hon. member has an opportunity to answer that, but I don’t understand why we’re even having to do this at all. Thank you. 8:50 MR. DICKSON: Mr. Chairman, it’s an excellent question, and I appreciate the Member for Calgary-Egmont raising it. The reason I say it’s an excellent question is that I’ve heard other members in this caucus also raise that, and it’s my oversight I didn’t address it.

It’s true that two adults in this province who are mentally competent can enter into a contract to do virtually anything so long as it’s not illegal. The difference is this: two adults can retain two lawyers and spend hundreds, maybe thousands of dollars each to do the equivalent to what we know as an antenuptial, or prenuptial, agreement that says that in the event of separation you get the television, you get the bank account s, and so on. That is still possible. The point is this, though: you can’t give the courts jurisdiction by agreement.

The Domestic Relations Act, which is a very specific statute, gives the courts remedies to give a protection order or support order under

part 3 and

part 4. You can only go to court and ask for those things if you come within what the act says, if you meet the threshold test. Right now that is two married people. If Bill 12 passes, it could be an opposite-sex couple. So what I say to the Member for Calgary-Egmont, raising a very reasonable question, what happens is this: this proposal allows those two people – they don’t have to see a lawyer. They just sign this very simple little thing saying that in the event of separation, either party can go to court and exercise the remedies that exist there.

Then when they show up at the courthouse if they separate, if they choose to make an application, all they have is just a one- or two- page agreement, and that gets them in the door, and then they make the argument in front of a judge. If you have two parties who have just made this big, huge agreement, what happens to enforce it – you can’t go and do it under the Domestic Relations Act. What you have to do is bludgeon each other to death, the way you usually do in lawsuits. You issue a statement of claim. There are 15 days for the other party to defend. You go through examinations for discovery.

Two years later, if you’re lucky and you’ve got lawyers who move with alacrity, maybe you’re there for trial. That’s not the process that people under the Domestic Relations Act use. They can pop in before a judge on relatively short notice and say: “I was in a relationship, and we’ve separated. There’s a huge economic disadvantage. I’ve been taken advantage of. I want some support. Or I need a protection order. I’m asking the court for it.” So it’s very different. I don’t know whether I’m making the distinction clear.

Although two people can enter into an agreement, you cannot by the agreement create jurisdiction to be able to go to court and use remedies under a specific statute. All you can do is take a very expensive and very long and involved route. That’s the best explanation I think I can offer. So it doesn’t preclude two people entering into an agreement, but it doesn’t give them access to the same remedies. Thanks very much, Mr. Chairman. I think there are other speakers. THE CHAIRMAN: The hon. Member for Edmonton-Ellerslie. MS CARLSON: Thank you, Mr. Chairman.

I rise to support my colleague’s amendment to Bill 12, amendment A2 I believe it’s called. I agree with my colleague from Calgary-Buffalo that this is in fact a good companion amendment to the one that we just passed. It rounds out and completes the package almost fully, as we’ve seen it, and enhances this bill; there’s no doubt about it. If I could just add a couple of comments to the query by Calgary-Egmont in terms of why this can’t just occur now under Bill 12. If you take a look at this in terms of protection orders.

If same- sex partners have to go through the huge process of getting a lawyer and writing up documents and so on and so forth, the expense of that, the time associated with that , the wherewithal it takes to get into a lawyer’s office and get through that process, and then something happens in the relationship, if for some reason one of the partners decides they need a protection order, which sometimes happens, Mr. Chairman, usually people in the position of requiring a protection order don’t have a lot of access to resources.

They don’t have the same wherewithal that they would have had in the same instance when they went to a lawyer for an agreement in the first instance. For some reason they are now at a significant disadvantage. We see this all the time with traditional married couples. When one of the parties needs a protection order, they are usually destitute to some degree. They usually don’t have access to resources as they would have had in the past. They need a fast process to get a protection order, and they don’t have the resources to access it through the systems they would need to have.

If this amendment here tonight isn’t passed, it would be much longer, much more difficult for them to access, and would in essence set up a number of barriers that would preclude many people from accessing what may be a very needed step in terms of a protection order. So in fact same-sex couples won’t get equal treatment without this kind of wording in the amendment.

May 10, 1999 Alberta Hansard 1583 I hope that helps clarify Calgary-Egmont’s question. I’m sure if that doesn’t, there are a number of my other colleagues who will be able to help in that regard. Mr. Chairman, this amendment is important to have in this bill, I believe.

To put “partner” into this amendment before “spouse,” wherever it occurs, pushes this go vernment into the 21st century, although I’m sure it pushes them in kicking and screaming, as we have seen over the past few years in this Legislature. [interjection] Yes, and putting their nighties over their heads and cowering, as my colleague from Edmonton-Riverview made a point of on a previous occasion. All of those visual images I think are very real in this context. They don’t want to go there, but the fact is that one way or the other, Mr. Chairman, they’re going to have to.

They can do it now the right way, the proper way, the forward-thinking way and enshrine it in legislation through this amendment, or they can wait for the court challenges. We’ve seen what happens in those circumstances. They’re costly. They create a lot of discomfort in the community. They create winners and losers. They put up barriers for people. I don’t think that is really how we want to treat people in this province, although you would never know it from the way the government acts most of the time.

Having said that, I thin k this is a position they can take, not where they’re forced to by the courts, as they were in terms of bringing in Bill 12 in the first place, but in a forward-thinking manner, where they can enshrine in legislation something that then makes the legislation, as my colleague from Calgary-Buffalo said, Charter-proof – wouldn’t that be a nice change for this province? – not, every time we get into one of these tight corners, having to go to court and spend taxpayers’ money defending what needs to be done and what should have been enshrined in legislation.

The government’s refusal to acknowledge that putting “partner” in here before “spouse” is something that’s important, that recog- nizes the social set of conditions we live in in this world and in this generation, I think speaks to the ethnocentricity of North American legislators, Mr. Chairman. I think that’s something that we need to seriously take a look at. 9:00 In translating that for this front bench, what it really means is we’re seeing a government in this province that works from the dinosaur age. They only see their own culture.

They only see their own narrow social framework within which to operate, and it is archaic. It’s ice age in mind-set, and that’s the kind of legislation we see being put forward here. It’s very ethnocentric in its purpose. If we were to take a look at other cultures existing now, many of whom come and settle in Alberta, Mr. Chairman, we would see that their set of social parameters really doesn’t fit.

If you were to take a look at the Hindu culture, there is no marriage licence, so while they come to this country and say that they’re married, in fact by the particular defined, narrow, prescribed circumstances that this government recognizes, they aren’t. They’re simply two cohabiting people. For the first three years that they would be in this province, they wouldn’t be recognized either. Why can’t this government think outside of the box just a little, Mr.

Chairman, and take a look at the complete society that we live in today and recognize all of the variations that are thriving in this province and making this province a wonderful pl ace to live and work in and to raise our children in? This amendment that we see here is one small step forward in that regard. Why can’t we just do the right thing this time and acknowledge that it needs to be put in legislation before it gets hauled before the courts and costs people a lot of money and creates a lot of problems and barriers for people in this community?

Let’s take a look at some of the other cultures that are settling in Alberta and take a look at the rules that are prescribed for them to live within their social and cultural barriers and frame- work and see if we can’t acknowledge them. This is more than just being about same-sex partners, Mr. Chairman. This is about acknowledging partners in a relationship, who work together, who build a life together, who raise a family together, who contribute to the ta x framework, that this province cherishes above and beyond any other kinds of criteria that people could contribute to.

Let’s acknowledge that in its totality rather than finding such a very narrow focus that when we talk about this bill, we just talk about spousal, because it doesn’t reflect the society. It doesn’t reflect male and female relationships that we see occurring in our province at this time.

I think those are some very, very good reasons for this government to take a strong look at this amendment, before they just arbitrarily vote it down, which is usually their way when we bring forward amendments, and to think about it for a moment, think about how this can help complement this bill – the amendment we saw just before this passed with support on both sides of the House – and see if they can’t move their thinking outside of the box for a little while and recognize all the different nuances we have that make up a part of the fabric of this province. So with those comments I will take my seat.

THE CHAIRMAN: The hon. Member for Edmonton-Riverview on amendment A2. MRS. SLOAN: Thank you, Mr. Chairman. I’m extremely pleased to rise in support of my colleague the Member for Calgary-Buffalo’s amendment to Bill 12 and to lend support to the reasons for which he’s made this amendment. I believe it’s Calgary-Lougheed that provided the last amendment which we debated, and I think it was provided with the same intent, an intent to try and broaden the definition so that it would apply in perhaps circumstances with respect to same-sex marriages.

But as I pointed out in the citation of correspondence earlier in my debate, it may very well not be broad enough to prevent this government from being taken to court over the definition. I think that’s why the hon. Member for Calgary- Buffalo has proposed the amendments before us now. You know, when I look back on this session, I think this bill will be, in my mind, one of the most challenging bills that we’ve debated in this Assembly when you look at – and certainly it has been reported – how divided Albertans are on this issue.

In fact, a strategy paper that was reported in March of this year specifically talked about the degree of polarization that exists within our province surrounding this particular issue. The report cited that public views were equally divided and that it would be difficult for government to get a clear reading on what action it should take. The interesting part of that, Mr.

Chairman, is that when a government can’t establish a clear mandate from its electorate, that’s when you really see what a government is made of, how far they’re willing to go to be just and fair and equitable, how much where- withal they have to take a stand that is true and right. I will acknowledge here tonight that we don’t have, that there is not solidified support or majority support on this issue, but I think it’s an area where the government has an opportunity to show what they’re made of and to make this bill such that it will not be subject to challenge by any court. MR.

DICKSON: That would be refreshing. MRS. SLOAN: That would be so refreshing. I think we’ve spent enough taxpayers’ money in this province

1584 Alberta Hansard May 10, 1999 challenging issues before the courts, all the way to the Supreme Court, where I’m not really sure the legislators or the government that were involved in those challenges really had a clear mandate to do so. Just referring back to the ministerial task force report, clearly in their opposition to the Vriend decision this government did not have majority support to oppose that all the way to the Supreme Court.

In fact, if I can read the exact citation, it summarized that 69 percent of poll respondents said that using the controversial clause as an override of the Charter of Rights and Freedoms should only be invoked if there is a clear vote of support in a referendum. The report said that a majority of Albertans do not support using the Constitution’s notwithstanding clause to block expansion of gay rights and benefits. So in fact if the question had been asked, Mr.

Chairman, I would hazard to guess that the majority of Albertans would not have supported spending the thousands, perhaps hundreds of thousands of dollars we spent challenging this issue to the Supreme Court. Just to summarize on that point. When I look at this issue and in my debate of the bill, the lens through which I’ve looked is: is this law fair, equitable, and just?

Regardless of what sex or sexual orientation or gender the citizen is that happens to find themselves in a position where they need to apply or take an action under this act, is it going to apply equally to them like all other citizens in the province? I don’t believe without this amendment that we can say with certainty that it will.

So fo r me it’s a very clear lens through which we have to look, and I think the government has an opportu- nity this evening to actually save themselves some grief and save the taxpayers of this province some money by supporting the amend- ment proposed by the Member for Calgary-Buffalo. 9:10 Just some final thoughts, as well, with respect to this issue, and again correspondence that has been sent to me as well as to other members of the Assembly by Inez Walker, the chair of the sexual orientation, pastoral care, and justice task group.

Inez writes that in 1985 the United Church of Canada prep ared the following statement for The Equality Rights Commission: “To leave one group of citizens outside of the rights and privileges (as well as responsibility) is a dangerous precedent.

In a democracy, it is equally dangerous to leave the decision about inclusio n or exclusion of any particular group from human rights safeguards to the will of the public at any moment in history.” Fourteen years later we are saying the same thing, however we now have knowledgeable MLAs who are agreeing with us, and then there are those in the Government who say: “that if a decision is required on these issues that the government will ask the people for advice and act accordingly”. The writer asked, “Do you not think there is a little waffling going on here?” I would have to respond in the affirmative, Mr.

Chairman. Inez also spoke about a component which we haven’t mentioned this evening, and that is the healthy development of children being raised in relationships and her desire to ensure that those children receive stable, consistent, warm, and responsive relationships. A parent’s capacity to support and be emotionally available to a child is enhanced in the cont ext of a supportive relationship, especially if there is good communication, effective problem solving and sharing of family responsibilities. In that respect, Mr.

Chairman, again the amendments proposed are providing for legislative equality and an environment in which, if these sections were applied in other legislation, as the hon. Member for Calgary-Buffalo provided for in his introductory remarks, we could ensure that those children who are affected by such acts are receiving the entitlements that they’re deserving of. With those thoughts I will conclude my debate this evening. Thank you. MR. DICKSON: Mr.

Chairman, human rights are never about opinion polls, as the Minister of Justice has again discovered to his regret with Bill 38, which seems now to have, once again, been consigned to the garbage can or the paper shredder. Yet I think some members may be interested to know there are questions about where Albertans are at on this issue of acknowledging those Albertans who choose to live in same-sex relationships. As I say, although I don’t for a moment think that this is about opinion polls, it may be of interest to members to know that Albertans have views on this matter. I think what happens so often, Mr.

Chairman, is we come into this Assembly and we all, every one of us, tend to speak and vote our own prejudices. In the things we say in this Assembly and in the way we vote, we reflect our own life experiences, our own attitudes, whether those attitudes have been forged from modeling on our parents or people we’ve known and so on. That’s part of how we get here. I think we all have. I mean, I’ve certainly had the chance of learning a lot in the time I’ve been an MLA from other members and in all caucuses in terms of other views, in terms of a host of issues.

On this one what’s interesting is that the federal government had undertaken a survey. I know that the Minister of Family and Social Services will be particularly interested in the survey. It was done on October 1, 1998, and submitted to Justice Canada. It was on same- sex issues. You know what’s interesting? The poll was a random national telephone survey of Canadians 18 or older. It gathered responses from 1,515 Canadians. This kind of survey has a margin of error of plus or minus 2.5 percentage points 19 times out of 20. So it’s a credible kind of survey. Here’s what was interesting.

It was found that the majority of Canadians support extending benefits to same-sex couples: 83 percent supported bereavement leave; 76 percent, family or related leave; 74 percent, federal social leave benefits; 70 percent, survivor benefits; income benefits and ob ligations, 69 percent; rights and obligations of common-law couples, 67 percent; rights and obliga- tions of married couples, 60 percent. Now, what’s interesting here is if you look at the survey, it says: legally called spouses, 59 percent.

So clearly what you see is, as I suggested before, when you start telling Canadians that we’re going to change the meaning of the word “spouse,” you’ll find more resistence and a lot less support. But it’s interesting that on the basis poll it looks like there would be – you might argue there is a majority of support.

The other thing that’s interesting because we’ve chosen not to redefine the word “spouse,” is that when Albertans were asked, quote, you said you don’t agree with these couples being called spouses; I would like to read you a few alternatives and you tell me which one is most acceptable and sec ond most acceptable to you. The word partner was acceptable to 45 percent; cohabitant, 35 percent; household member, 28 percent; common-law partner, 30 percent; domestic partner, 27 percent. So it’s an opinion poll.

It’s not 1999, but it is only a year ago that the poll was taken, and what’s interesting is that it shows an i ndication of attitudes of Canadians which I think is very consistent with amendment A2, which we have in front of us, Mr. Chairman. I think that there’s been a pretty thorough discussion of the amendment, maybe more discussion than some would like, maybe not as much as others wish, but I think that no member in the Assembly can be said not to at least have had presented to them the arguments in support of the amendment.

I might just remind members, the government members in particular, that their Premier has promised that the government is somehow going to solve this issue, and he’s charged his four cabinet ministers, I think the Minister of Health, the Minister of Community Development, the Provincial Treasurer, and the Minister of Justice – these four

May 10, 1999 Alberta Hansard 1585 illustrious legislators are going to, I guess, come up with the answer. So they may come up with something much better, Mr. Chairman. They might. The Minister of Community Development, a wily and experienced veteran in this Assembly, may come up with a better solution, but you know I don’t know exactly what that’s going to be. As I look at the horizon, this is as good a model as this government’s going to get that allows them to walk the path between being clobbered over the head by another adverse court decision and doing something which creates more problems than it solves.

So with that, Mr. Chairman, I’m going to urge that we now vote on this and then move forward. There are some other amendments to come yet on the bill. Thank you. [Motion on amendment A2 lost] THE CHAIRMAN: The hon. Member for Calgary-Buffalo. MR. DICKSON: Well, Mr. Chairman, the interesting thing is going to be to see what happens when we finally see the last installment in the fences committee report. When that comes in, it’s going to be very interesting, hon. members, to see what creative solutions the government comes up with, Edmonton-Beverly-Clareview notwith- standing. Mr.

Chairman, moving on now, the next amendment I’m propos- ing would be the amendment that I put forward as A3. I’m not sure. It may perhaps just be being distributed now. THE CHAIRMAN: You could read it while we’re waiting for the distribution to occur. MR. DICKSON: I’d be happy to, Mr. Chairman. The amendment that I’m proposing to call A3 would be this: that we amend Bill 12 in

section 7 in the proposed

section 25.01(2) by adding the following after (f): (

g) there is a child who has lived in the relationship and to whom both spouses stand in place of a parent and where the child recognizes both spouses as parents; (

h) one of the spouses was a minor at the time the agreement was concluded; (

i) a reason for making the agreement or provision was the immigration status or citizenship of one of the spouses, or a relative of one of the spouses, under Canadian or foreign law; (

j) a reason for making the agreement or provision was the existence of a minor natural or adoptive child of a spouse. 9:20 Now the reason for this amendment – and I’m moving it, and I’m asking that that be noted as A3, Mr. Chairman – is that it struck my caucus on reading the proposed

section 25.01 that there were some other matters that the court should be able to have regard to. What you do when you give to the court an element of discretion is that typically you want to limit the scope of the discretion by requiring that certain tests or certain criteria should be considered, and I think they’re relatively straightforward. The first one is that if there’s a child that’s lived in the relation- ship, is it not important – and I know the Minister of Family and Social Services would have probably suggested this amendment if I hadn’t put it forward.

We heard the Premier this afternoon talking about the importance of children. Well, why would it not be particularly important that if there are interests of a child, they should be addressed? In the existing bill we see that (

e) would deal with children of the relationship, but there are often cases where a child comes into a relationship. You know, we’re an amazingly mobile society, and it’s not uncommon that people come into relationships, and they have children from previous relationships. So if in fact the government means what it says when it says that we put children first, I expect the Minister of Family and Social Services is going to be encourag- ing his colleagues to support this amendment.

We think it’s important that a child who may not be a natural child of the two parties but who has lived in the relationship – if the parents stand in loco parentis, in the place of a parent, there should be protection for that, so that’s the part for (g). Subsection (h), “one of the spouses was a minor at the time the agreement was concluded”: we think that’s important. Subsection (i), “a reason for making the agreement or provision was the immigration status or citizenship”: we don’t think, Mr.

Chairman, that the Minister of Community Development would want to be part of a government that would permit someone to enter into an illegal marriage or an illegal relationship to give some person landed status for immigration purposes, and that’s the purpose of sub (i). Subsection (j), “a reason for making the agreement or provision was the existence of a minor natural or adoptive child of a spouse”: we think that that’s a circumstance again that the court should be able to look at. So what we’re saying is that the court will still have discretion.

The court will do what it’s going to do, but we just want it to look at these different factors, and there are ways of signaling that these are things that legislators think are significant. So those are the reasons for A3, and I hope members will find it useful and appropriate to support these amendments. Thank you. [Motion on amendment A3 lost] MR. DICKSON: Mr. Chairman, moving on, we’ve got a number of other excellent amendments that we’ll put forward for the consider- ation of members of the Assembly. As I say again, you know, our job is trying to help the government pass the very best legislation it can.

I said before that Bill 12 has a number of limitations. This would remedy another one. I’m moving what I’d propose to be A4, and that is that Bill 12 be amended in

section 7 in the proposed

section 25.01(2)(

b) by striking out clause (

b) and substituting the following: “(

b) either spouse who entered into the agreement did not receive independent legal advice.” The Member for Calgary-Fish Creek I see at the moment is interested in this amendment, and I’d encourage her to look at page 3 of Bill 12 and look carefully at the new 25.01. We have a provision here in the (

b) part that if the spouse who challenges the agreement didn’t have independent legal advice, then that might be a reason for a court to disregard the agreement. Why would it be so narrow? Why would it be so limited? Why would you not do it more generally: “Either spouse who entered into the agreement did not receive independent legal advice”? Mr. Chairman, in sort of weighing who’s going to be advantaged or disadvantaged, we think it’s a significant factor if either party didn’t receive independent legal advice. So that’s the reason for this amendment.

I think it’s helpful, remedial, as I say, through perhaps not a totally objective analysis but one I put forward as our best efforts to improve a flawed bill. Thanks, Mr. Chairman. [Motion on amendment A4 lost] MR. DICKSON: Mr. Chairman, I’ve had some members of

1586 Alberta Hansard May 10, 1999 government caucus expressing some sympathy that I’m not having more success in my amendments. You know, I remember that first freedom of information bill. I think we put in about 45 or 50 amendments that were all voted down, so this isn’t so bad at all. You know, I think the government members are a heck of a lot smarter now than they were in 1994, and that’s why I’m holding out some hope that we’re going to make a little progress. Mr. Chairman, the amendment we’re moving to now and that I propose to be called I think A5 would be this one that proposes that Bill 12 be amended in

section 5 in the proposed

section 16.1(5) as follows: by adding “or an interim order,” before “or any provision of” and by adding “or an interim order” before “on application by.” Now, the reason is that there are typically two kinds of applica- tions you find in domestic law cases. One is an interim application, and the other is the final application.

Interim applications are common because you often are in situations where some interim relief is required, perhaps before there had been all the affidavit material filed, perhaps before there had been cross-examinations and affidavits, maybe before you’ve got the transcripts from the cross- examinations and affidavits. You know, if there are children involved and that sort of thing, time does not stand still, and it’s important to proceed and provide maybe some interim relief.

So that’s what this would deal with, and it just expands it. 9:30 I’d say to those members like the Minister of Community Development and my friend from Airdrie-Rocky View, who have been following these amendments so darn closely – you know, I have a sense that they’re trying hard to work with me to make this bill stronger. I have that sense. There’s a lot of positive energy coming from those members in particular and, I know, some other members, Whitecourt-Ste. Anne. I’m feeling that positive energy rolling over me as I speak, Mr. Chairman.

Here’s a modest amendment that would just buff up this bill a little bit and provide for an interim order. I challenge any member in this Assembly to offer a compelling reason why we wouldn’t want to make some provision for an interim order. It’s as simple a proposition as that. If there is any member that would like to offer an explanation, I’d be delighted to hear that presentation. Failing that, I’d just encourage members to . . . [interjection] The Member for Calgary-Fish Creek and I seem to have been in adversarial positions since that initial FOIP tour in the fall of 1993. You know, Mr.

Chairman, I’m just not sure why it is that we so often see things in different ways. MRS. FORSYTH: Because you see it out of rose-coloured glasses. MR. DICKSON: No. Mr. Chairman, at some point before either of us moves on to our great reward or life beyond the Legislative Assembly, I hope we’re going to be able to be ad idem on an issue. MRS. FORSYTH: I told I’d buy you lunch once you were elected. MR. DICKSON: She holds out promises after we leave this place. [interjection] Anyway, I don’t want to belabour the point. This is a very serious amendment. I know we want to move on it right away. Thanks very much.

THE CHAIRMAN: Calgary-Lougheed. MS GRAHAM: Thank you, Mr. Chairman. I just have one brief retort to the hon. Member for Calgary-Buffalo’s proposal in this amendment A5, and that is that the common definition and the common understanding is that the word “order” certainly includes an interim order. So this amendment is an unnecessary one although well-intended, I’m sure. MR. DICKSON: Mr. Chairman, I’d just like to thank the Member for Calgary-Lougheed for standing up and joining in debate. It feels good to know that I’m not debating this all by myself.

So I want to thank her for her observation and her acknowledgment that we are trying to make this bill better. Thanks very much, Mr. Chairman. [Motion on amendment A5 lost] MR. DICKSON: You know, Mr. Chairman, I think that as we move on, the reasonableness and the merit of the amendments just loom larger all the time. This is the one that I saved.

I wanted one amendment that I could go home tonight thinking that there was one moment on Bill 12 when the minds of all legislators sort of fused together, when we came together in one big experience where we saw some merit in doing one thing for Albertans that wasn’t currently done in Bill 12. I’m moving what I propose to be called A7, Mr. Chairman. THE CHAIRMAN: A6. MR. DICKSON: A6? Okay. [interjection] Oh yeah; right. Thank you very much. The one I’m moving now is A6. This would be to amend

section 7 in the proposed

section 25.01(2) by striking out “if any of the following circumstances apply and the Court is” and s ubstituting “if any of the following circumstances apply or the Court is otherwise.” What we’re attempting to do with this amendment, which I move as A6, is simply to make the wording clearer in the new 25.01(2). I think the hope is that this would just spiff up the wording a little bit so it would be entirely clear what was intended. There is a concern now that if you say, “The Court is of the opinion,” that means one thing, but it doesn’t really communicate what I think the draftsperson wanted to say.

I think with respect to what they wanted to say: and if the court is otherwise of the opinion that the agreement or provision would be inequitable. So that’s the reason for the amendment. It’s just to make it that much clearer. Thanks very much, Mr. Chairman. THE CHAIRMAN: The hon. Member for Calgary-Lougheed. MS GRAHAM: Thank you, Mr. Chairman. With respect to the member opposite’s

interpretation of what was intended, I would just like to make it clear that, in fact, the intention of the drafter reflects what government intended; that is, the court would only override an agreement opting out of the legislation if both of the enumerated circumstances applied – and, not or. It was intended that both preconditions must be fulfilled. The second one is that the court is of the opinion that the provision would be inequitable. So in fact the intention is that both conditions be fulfilled before the court overrides the opting out agreements.

I just say that to clarify for the member opposite what the government’s intention is. MR. DICKSON: Mr. Chairman, I am delighted again to get some discussion on the amendment. I recognize what is the presumed intention of the legislative draftsperson, but I think what we wanted to do was expand, not contract, the discretion of the court. I have, frankly, a great deal of confidence in the ability of courts

May 10, 1999 Alberta Hansard 1587 to deal with these matters. You know, it ought to be said now; I neglected to mention it before. All we’re talking about in this act, in this bill, and in this amendment is getting in the courthouse door. You still have to go in front of a judge and make your application. A judge is entitled to do a host of things, including denying any relief and dismissing the application outright. I neglected to mention that before. This doesn’t guarantee anybody a protection order or a support order.

I do think, frankly, that the amendment expanding the discretion of the judge is a helpful and useful amendment. Thank you. [Motion on amendment A6 lost] MR. DICKSON: Mr. Chairman, it’s probably too late to offer a bargain to members. If they’d accepted amendment A2, we could have dispensed with all of the other amendments. Mr. Chairman, the last amendment that we’ve got that I’d move, A7, is to amend

section 5 in the proposed

section 16.1(6) by striking out “the Court must take that change of circumstances” and substi- tuting “the Court must take that change in the condition, means, needs or other circumstances.” This is simply again to clarify what was identified to be somewhat ambiguous wording. I must say that this one was caught by the keen eye of a researcher; I didn’t spot this myself. The suggestion was made that we could do a service to Albertans by making clearer what we were looking for in terms of a change that would warrant the court to exercise the jurisdiction they have under

section 16.1 in its six subsections. Thanks, Mr. Chairman. [Motion on amendment A7 lost] 9:40 MR. DICKSON: Well, Mr. Chairman, I’m sad to report that I’ve exhausted all of the amendments that I had decided to put in front of the Assembly to improve Bill 12. As I said before, we have done our level best to take advantage of the invitation extended by the Premier back in the early days of the session. We put forward a model to deal with further legal chal- lenges, constitutional challenges, Charter challenges. We drafted the wording so it wasn’t a vague concept.

We spelled it out in as clear a language as we thought possible. We got agreement from representatives of different gay and lesbian community organiza- tions, from church leaders, from legislators in other areas. I can think of some law school faculty members I talked to in helping to draft the initial amendment. What we’ve done is tried to improve this bill. I guess I feel the burden of opposition has been lifted from our shoulders, and it now goes back to sit squarely on the shoulders of the government and members of the fences committee.

I for one am looking forward with great anticipation to see what the Minister of Community Development and her colleagues the Provincial Treasurer and the Minister of Justice and the Minister of Health are going to come up with. Now, Mr. Chairman, there may be some change. We don’t know. Are we going to have a different Minister of Justice in two months? Maybe we’ll have some different ministers in other areas. Does that mean the fences committee will change?

Was the Provincial Treasurer on there because he has the biggest calculator in the caucus, or was he on that committee because he has some strong views about these kinds of issues? I don’t know. Will the Minister of Justice still be the Minister of Justice, and if he isn’t, will he still be on the committee? We can only wait and see. There are lots of people we’d like to nominate for the committee. I look forward to seeing what’s going to happen on the fences committee. I certainly trust that we’re not going to hear in this Assembly any suggestion at all, Mr.

Chairman, that the Official Opposition didn’t do absolutely everything they could to make the laws of this province Charter-proof. The next time a court challenge comes down, the responsibility is going to be put squarely at the feet of the Minister of Justice and the Premier and those men and women who have the fortune or the misfortune to make up the government caucus of the day. Thank you very much for your patience, and I thank all members for their keen interest in the debate that we’ve seen on Bill 12 this evening. Thank you very much. [The clauses of Bill 12 as amended agreed to] [Title and

preamble agreed to] THE CHAIRMAN: Shall the bill be reported? Are you agreed? SOME HON. MEMBERS: Agreed. THE CHAIRMAN: Opposed? SOME HON. MEMBERS: No. THE CHAIRMAN: Carried. Bill 22 Health Professions Act THE CHAIRMAN: Are there any comments, questions, or amend- ments to be offered with respect to this bill? The hon. Member for Medicine Hat. MR. RENNER: Thank you, Mr. Chairman. I have both comments and amendments which I would like to bring forward. I’ll deal with my comments first. They arise out of the discussions in debate at second reading.

Then for the remaining time that I have, I’ll deal with some amendments, which are now being distributed. I want to, if I can, go through some of the questions that arose during second reading and deal with some of the specific questions and then make some general comments regarding the bill. If I can put the questions into a number of different areas, the first sort of general area the questions came up in had to do with the logistics of the bill, sort of generally speaking. Why is the government propos- ing this legislation? Why has the government combined legislation for all health professions into one act?

Legislation is complicated, and there are cost implications: I’ll address that. Does one size really fit all? Is this an attempt to undermine the principles of professional self-governance? While the process of the consultation initiated by the release of the first Health Workforce Rebalancing Committee discussion paper may have gotten us off to a rocky start, it was never part of the government’s agenda to abandon the principles of professional self- governance, and I think that that’s a key to this whole process.

This process began about five years ago, and self-governance was then and is now paramount in the legislation. There is nothing in this legislation that undermines in any way self-governance of these health professions. This is serious business. It affects the rights of practitioners, employers, and consumers. The decision to delegate professional self-governance must be based on considerations of public interest. It’s been pointed out at second reading that the legislation is

1588 Alberta Hansard May 10, 1999 undoubtedly complex, but the complexity reflects the complicated task we set for ourselves five years ago. We wanted to develop

an act that would set a common structure and provisions for the delegation of professional self-governance that applied to all health professions. There are basic things involving accountability and fairness and natural justice that apply to all health professions, such as public representation, the role of the Ombudsman, which is new to the process, the process for registration and assessment of applicants, investigation of complaints, and the holding of disciplin- ary hearings.

The act needs to have the flexibility to accommodate differences between professions, for example, entry requirements, scopes of practice, restricted activities, and professional colleges, which is the functional organization within each of the professions. That’s why, as a number of members noted, there is a fair amount of work yet to be done. In fact, I would guesstimate that there’s probably almost as much work to be done after this legislation is passed as there was prior to the legislation being passed.

There are a good deal of regulations that need to be developed on this, and there will have to be bylaws developed by each of the colleges. I have stated publicly a number of times before that I anticipate the earliest that any of the newly formed colleges will be up and running will be anywhere from a year to 18 months from now, and it could be as long as two years to 30 months before all of the various sections of the act are proclaimed and up and running. So it has been a long process; it will continue to be a long process. 9:50 Let me comment very briefly on the whole issue of regulation though.

The regulations that are developed under this act are substantially different than regulations developed under other pieces of legislation in that the whole issue of self-governance is of paramountcy in the act, and there are no regulations developed in this act that are not developed completely in consultation with the various stakeholder groups. In fact, the regulations that would be common to all professions will be subject to the same broad-based consultation that we’ve been through for the past number of years.

Even the regulations that are within the specific schedules that apply to each individual college, differentiating them from one another, will also require broad-based consultation among stakeholders. Those stakeholders would be other health professions, employers, regional health authorities. There even is in many cases some consultation that goes on with consumer groups and patient advo cacy gr oups. Ultimately, the regulations, then, will have to be approved by government.

So there is broad-based consultation, and all of the regulations that will accompany this legislation will have that broad-based consultation right across all sectors. Someone brought up the whole issue of cost implications. There are cost implications in this legislation. Professional self-regulation does have a cost, and we recognized that in the early consultation process. Professions have recognized it too. One approach is to combine professions under one regulatory college. Podiatrists, for example, will be regulated by the College of Physicians and Surgeons.

As the process develops, there still is opportunity for colleges to join under one umbrella. There is opportunity for colleges to maintain their independence but perhaps share some of the costs involved with other colleges that would be of complemen- tary style to their own. In the past the government has supported regulation of some professions through statutory boards and committees, such as those under the Health Disciplines Act. Over the past several years, however, like other provinces we’ve moved away from this model, and the professions have supported it.

The goal when establishing a regulatory college is that the college should be self-financed. Another series of questions that were asked during second reading: legislation identifies restricted activities which involve risk to the public. Why are unregulated practitioners permitted to perform these, and how will the public know whether or not the person providing the restricted activity is registered or not? I think this is probably the crux of the issue. This has been something that has had broad public debate. The Alberta Association of Registered Nurses has raised a number of concerns around this area.

I’m pleased to advise members that when I introduce my amendment later on this evening, the issues raised by the Alberta Association of Registered Nurses will be addressed in the amendment. I have been in consultation with them as late as this afternoon, and I have been advised by the president of that association that with the amend- ments I’ll be introducing tonight, the AARN no longer has concerns with this

section of the act. I’m very pleased that we were able to work together on that. During the development of restricted activity, situations were identified where it would be appropriate and necessary for nonregu- lated practitioners to be involved in the delivery of restricted activities. The situation of students learning to perform a restricted activity and the provision for emergencies were readily accepted. More problematic was the issue of how and to what extent unregu- lated practitioners should be permitted to perform restricted activities under supervision.

While we did not want to create a situation where a professional could provide nominal supervision of an unregulated practitioner, we also wanted the flexibility to allow unregulated practitioners to

part icipate in the performance of restricted activities under appropriate supervisory conditions. There is a teamwork concept that is used broadly within health care, and there are often different individuals working together as a team, some of which are regulated and some unregulated. That’s why it’s necessary to be able to deal with the whole issue of supervision, and as I said, I will be dealing with that under the amendments.

The AARN has indicated major concerns with the wording in the current bill in that it could perm it supervisory arrangements that would involve minimal participation of the supervising professional. During the past week I’ve been working with the AARN. As a result of these discussions, we’ve developed an amendment to the act that will put limits on the ability of unregulated practitioners to provide restricted activities under supervision and on the ab ility of profes- sionals to supervise these individuals.

The amendment will address the concerns of the nurses while at the same time ensure that there is sufficient flexibility to accommodate the needs of the health care system and other professionals. As I indicated earlier, the AARN has advised me this afternoon that they are satisfied with the proposed amendment and are withdrawing their opposition to this legislation. The next series of questions. What is the impact on professional self-governance? How will regulations, bylaws, codes of ethics, standards of practice be developed?

What protections are there to ensure that interests of the members of the college are addressed? There are many provisions for regulations. Is this government by regulation rather than by having issues brought into the House? Those are a series of questions that were gleaned from second reading debate. Like all professional statutes the act contains provisions for professions to make regulations to govern their members. This is fundamental to professional self-governance. Regulations will be made by the profession’s council and must be approved by the Lieutenant Governor in Council.

The process for developing regulations will involve consultation with the member- ship of the profession and other stakeholders. The act does not require ratification of regulations by the member-

May 10, 1999 Alberta Hansard 1589 ship. This does not mean that th e membership is not involved in their development. Clearly it w ould be unwise in the extreme for any profession to develop and attempt to enforce a regulation where it did not have the commitment of its membership. That, however, needs to be achieved through consultation and communication as regulations are developed, not through the mere ratification of a final product.

Obviously that is a crucial part of the government’s process and the Lieutenant Governor in Council in ensuring that before the Lieutenant Governor in Council approves the regulations brought forward by colleges, they provide some evidence that these regula- tions have been passed by and have the approval of the majority of their members. Concern has been expressed with the appropriateness of having so much addressed in regulation, and I made earlier reference to that. The ability of regulatory colleges to make regulations is essential if they are to govern their members.

Bylaws are made by the council and approved in accordance with a process set out in the bylaws. The act does not set out a single process for all professions. There are differences among professions now in how bylaws are made and approved, and those differences will, I’m sure, be maintained into the future. Bylaws and their approval are matters that each profes- sion needs to work out for itself. I know that the Member for Spruce Grove-Sturgeon-St.

Albert in her discussion expressed some concern that she had with a psycholo- gist in her constituency indicating that the act would allow for the college to basically appoint all of its officers. That’s true, hon. member. On the other hand, if you look in the bylaw

section of the act, the act also has a

section that will deal with the process for adopting bylaws. So before the act is proclaimed, the college will in fact develop a series of bylaws. The main bylaw is: what is the process for adopting and changing our bylaws? Some colleges will leave that up to the council; other colleges w ill require ratification by the membership. That will be included in their bylaws. It’s no different than when you set up a society under the Societies Act.

One of the first things you deve lop is a constitution, and in that constitution you define what the process is going to be for election of your officers or appointment of your officers or for changing the constitution. The same thing will apply here. So before they initially get up and running, they will have to work that out with their membership, and again if they’re not able to work it out with their membership, then the government, in proclaim ing this

section of the act, will defer until that has been resolved internally. 10:00 Codes of ethics and standards of practice are very near and dear to the hearts of regulatory colle ges. The intention here in the legislation is very specific: that these issues are developed by the council and they are developed in the form of bylaws, not regulation. There is a provision in the act where the council must consult with its membership and with the Minister of Health prior to adoption of a code of ethics and bylaws. It is this consultation process that we see as being very critical. Another series of questions.

What is the role of the regulatory college? Will colleges have a role in advocating on behalf of the profession? Will colleges be involved in assessing work environ- ments and, if so, in what way? Well, the act clearly sets out that the role of the college is to regulate members of the profession in the public interest. Other roles cannot conflict with this basic require- ment, thus a college cannot also negotiate collective agreements. Can a college advocate on behalf of the profession? Certainly. They do now. They advocate on behalf of standards and issues in the health system. They do this now.

The legislation does not prohibit advocacy in this manner, but that advocacy must not be in conflict with the college’s primary responsibility to regulate its members in the public interest. Some colleges have found it appropriate to establish a separate organization whose role is to advocate on behalf of the members of that profession. The most obvious, the AARN, I referred to earlier. The AARN is the regulatory body, and then there are unions that represent and advocate on behalf of the members. So there’s a clear distinction there. [Mr. Herard in the chair] The same thing with physicians.

The Alberta Medical Association advocates on behalf of its members, and the College of Physicians and Surgeons is there to protect the public interest. There is an advocacy role, but it is subjugated by the very clear role that the college plays in protecting public interest. Will colleges be involved in assessing work environments? Yes. If the profession has regulations authorizing practice visits, those visits may involve some assessment of the work environment.

Where the work environment is a publicly funded facility, the act requires that there be agreement from the person who controls or operates the facility. The act no longer addresses the requirement of registration for students, and some professions have indicated that they need to register students. Well, Mr. Chairman, although the act does not refer to a requirement to register students, it is still the case that students who practise restricted activities without supervision must be regulated. The most obvious example of that is advanced physicians in the last year of their internship.

They are not licensed physicians at that point in time, but they do now practise restricted activities without direct supervisi on, so they would have to be registered under the act. Professions also have the ability to establish student categories and regulation. These students will be subject to the regulatory control of the college. Students who perform restricted activities without supervision would have to be registered, and whether colleges regulate other students is something they need to address in the consultation with educational institutions and other stakeholders.

Again, it’s permitted under the act, but it’s not made mandatory under the act. Colleges may also establish student categories and bylaws if the intent is only to create an interest or social register, and some colleges may feel that’s a good way to introduce new people into their profession. If they’re students, they can register them as a student member, have a category under regulation whereby the student members will receive their monthly publications and be invited to social events but will not have all the obligations of a registered member.

Many professions have reserved a student title in their schedules in contemplation of regulating at least some students. The act gives the complaints director the power to require a member of the college to undergo an assessment if the complaints director believes the member to be incapacitated. One of the members asked: what is the reason for this provision, and does it not give a lot of power to the complaints director? Well, the intent of this mechanism is so a profession may deal with an incapacitated member without having to rely on the discipline process.

Clearly the provisions for incapacitated members give the complaints director considerable power, but we felt this was appropriate considering the potential for harm to the public that may result from an incapacitated health professional. The complaint director’s authority is subject to appeal and cannot be exercised arbitrarily. We will also be proposing an amendment, which I w ill get into

1590 Alberta Hansard May 10, 1999 later this evening, to clarify that “incapacitated” means the practitio- ner is unable to provide safe and competent professional services. The intent is to allow regulatory colleges the flexibility to deal with practitioners humanely and responsibly without having to go through a costly and adversarial disciplinary process. If the regulated member chooses not to co-operate, the college can resort to the . . . [Mr. Renner’s speaking time expired] I see that my time is up.

I’d be more than pleased to hear from the member opposite, or I would be also pleased to take my pl ace and introduce my amendments forthwith. MS LEIBOVICI: Well, I’m not sure if that was an invitation just so the Member for Medicine Hat can finish his speech, in which case, I’m willing to do that, and then we can hear what the amendments are, but I’d like to hear more of his comments. MR. RENNER: Thank you, hon. member. I appreciate the co- operation. I just have a few other brief comments to make. Mr. Chairman, this bill is just about 300 pages long, so it’s difficult to take everything and boil it all down.

Another question that was asked was: how will public members be selected for appointment, and will the choices be politically motivated? Well, Mr. Chairman, I have to point out that the government has been appointing public members to professional governing and disciplinary bodies for many years. The process will not change. In all of our consultations – and believe me, we’ve had a lot of consultation over the last five years – no one has raised the concern that these appointments have been made on a political basis.

In fact, the appointments of public representatives are brought forward by the colleges themselves and ratified by the government. The Health Professions Act will increase the demand for public members. The government and professions will need to work together to obtain suitable candidates for these public member positions and develop a process for selecting appropriate appointees.

I mentioned when we were at second reading that there is an even stronger public component under this act, so not only will there be more public representatives required, but the act also provides that the expenses and honorariums of public members that sit on the councils of each of the colleges are paid by the government. So it’s very clear that their representation on those councils is there to represent the public. Under the current legislation in many cases the expenses and honorariums are paid by the college, and some have suggested that that could pose a conflict of interest.

Finally, there were questions asked around the business arrange- ments, and it was pointed out – and I don’t disagree – that the provisions are very complicated. One of the members asked: why are some professions allowed to establish professional corporations but not others? The barriers to interprofessional practice seem to still be there. Well, Mr. Chairman, the provisions for the establish- ment of professional corporations exist in current legislation for physicians, dentists, chiropractors, and optometrists.

Those identified professions cannot incorporate themselves into a business corporation, and I think I actually talked about this when we were talking about the Partnership Act a few days ago. Those specific professions that are allowed under legislation to form professional corporations are at the same time prohibited from forming business corporations. Members of all other health professions can establish an ordinary business corporation. 10:10 Changing the provisions for professional corporations is really not feasible within the context of this current initiative.

Therefore, the act maintains the provision in the current legislation for professional corporations. So what I’m saying is that the status quo is carried forward into this act. If at a point in the future there are changes contemplated to professional legislation, obviously those changes could be made consequentially to this act, but it’s an entirely different issue. It’s so much separated from the whole concept of regulating health professions that it wouldn’t be appropriate to deal with that at this point in time. What is new is the pr ovision for practice in association.

This clearly establishes the basic premise that professionals may associate in practice unless there are limitations set out in regulations, codes of ethics, or standards of practice under the act. Clearly what we are doing with this act is moving the yardstick ahead, encouraging professions to work together, prac tise in association where in the past not only has that encouragement not been there, but in fact the legislation in many cases prohibited or discouraged those kinds of practices. So we do look forward to seeing greater co-operation among the professions after this act is in place. At this point, Mr.

Chairman, I would like to move into the amendments that I have. All members have had copies circulated to their desks. I’m not intending to go through these item by item, but I would like to highlight some. Mr. Chairman, I would move that the amendments, all three pages – there are actually five pages; they’re printed on both sides. I’d like to move these amendments as one amendment. THE ACTING CHAIRMAN: Okay. Hon. member, we will label that amendment A1, and we’ll deal with it in one vote. MR. RENNER: Thank you. Mr. Chairman, if I can deal with these

section by section, and on some I will be very brief. The first

section deals with (

a) a grammatical error.

Section (

b) deals with something that I mentioned earlier in my comments where it could be misconstrued what an impairment means when dealing with the issue of a professional that is impaired. This is in the act under provisions of incapacitated. When it says that the ability of a professional is impaired, that may not impair in any way the health and safety of the patient. So we’re adding the terms “in a safe and competent manner” after “professional services.” In

section B we’re amending

section 12 of the act. In (

a) we strike out “a meeting of a council, a complaint review committee and a hearing tribunal and a panel of any of them” and substitute “an appeal under

Part 4 before a council, a ratification of a settlement and a review by a complaint review committee and a hearing by a hearing tribunal.” The purpose for this, Mr. Chairman, is just to make it very clear that an appeal under

part 4 before a council needs to be included in the 25 percent minimum requirement for public representation. So it’s really for clarification more than anything. Then (

b) and (

c) of this

section have to do with grammatical changes that result from changing the wording in (a). In C we’re striking out “Provincial Mental Health Advisory Board” and substituting “Alberta Mental Health Board.” This change was made after the act was drafted. It’s just straightforward. In D we are dealing again with the public representation. This clarifies that when a hearing tribunal is in process and the term of one of its members expires, that member may continue to serve on the hearing tribunal until the specific complaint has been dealt with. It just clarifies that the complaint and the hearing have precedence. In

section E we are clarifying voting members on the advisory board. We identify that there are 12 persons appointed as voting members, so when we deal with quorums we’re talking about voting members. THE ACTING CHAIRMAN: Hon. member, sorry to interrupt you.

May 10, 1999 Alberta Hansard 1591 Would this be a convenient place to revert to Introduction of Guests? All in favour? HON. MEMBERS: Agreed. THE ACTING CHAIRMAN: Opposed? head: Introduction of Guests (reversion) THE ACTING CHAIRMAN: Edmonton-Ellerslie. MS CARLSON: Thank you, Mr. Chairman. This evening we are joined by Sam Gunsch. He is here representing the Canadian Parks and Wilderness Society and is looking forward to hearing the debate on Bill 15, particularly the debate on the 40 or so amendments that we will be introducing.

I’d ask him to now please rise and r eceive the traditional warm welcome of this Assembly. THE ACTING CHAIRMAN: Hon. Member for Medicine Hat, thank you. Bill 22 Health Professions Act (continued) MR. RENNER: Thank you, Mr. Chairman. The next, F, deals with a clarification, cancelation of a practice permit. The draft indicates that if an individual does not pay their dues, their registration and practice permit may be canceled. Well, obviously we wouldn’t want to cancel the registration and have to go through the whole process of requalification, so only the practice permit need be suspended. In G – that’s

section 46 – there are provisions there that deal with mandatory registration. A number of those came about as a result of the consultation process, but we had discussions with dietitians and nutritionists who pointed out that, like some of the other provisions in this section, their members do not necessarily provide their services directly to the public but nevertheless are providing professional services.

So there will be a provision added under (ii), adding “food and nutrition professi onal services that are used by other regulated members and individuals to provide services directly to the public.” It’s a provision very similar to the one that deals with the manufacture of dental appliances. In H it’s just a correction in reference of numbering. I is a grammatical change. J deals with the same thing that we disc ussed earlier in the Forestry Profession Act, when an individual investigator can receive copies of documents.

However, if there’s reason to believe that the originals are not legitimate, have been altered in any way, the investigator may take away the originals “to perform tests on them” and then must return them within a reasonable period of time. In K we’re dealing with a hearing. The act states that “the investigated person must appear,” and we’re adding the provision “may be compelled to testify,” just to make it very clear that the individual not only must appear but is compelled to testify.

I would point out at this point that there are also provisions in the act that make it very clear that testimony given by an individual cannot be used against that individual in court proceedings. In L it’s the same kind of situation, talking about “and to be sworn and answer questions.” So it’s the same kinds of provisions as K. 10:20 In M it’s a grammatical change. In N it’s a change in reference. O is for clarification purposes. P is just for clarification to ensure that “panel” is also included.

Q deals with the title “doctor” by pointing out that the subsection does not apply to a person who uses the title “doctor”, “surgeon”, “pathologist” or “oncologist” or the abbreviation “Dr.” alone or in combination with other words in connection with teaching, research or administration. Now, R is where we get into the issue that has been raised by the AARN. If I can refresh everyone’s memory here, the

section on restricted activities indicates that no person shall [supervise] a restricted activity . . . unless (

a) the person performing it (

i) is a regulated member . . . authorized to perform it . . . and then it goes on to say that (

b) the person is performing it (

i) with the consent of, and (ii) under the supervision of, a regulated person. I pointed out when I spoke at second reading and the AARN has also pointed out that that is in fact too loose and that the onus is then on the individual professional to determine whether or not the level of supervision is appropriate for the circumstances. I am proposing in R that

section 130 be amended by striking out “and respecting how regulated members may supervise others who provide restricted activities with their consent . . .” and by adding after clause (c) (c.1) respecting (

i) who may perform restricted activities under

section 4(1)(

b) of

Schedule 7.1 of the Government Organization Act with the consent of and under the supervision of a regulated member, and (ii) how regulated members must supervise persons referred to in subclause (i). Then if you go to the next, S also deals with the same issue. It amends that

section in the Government Organization Act by making it very clear that the person who is performing a restricted activity is doing so only under the supervision of a regulated professional who is authorized to do so under regulation of their college, and the person performing the restricted activity has been identified under regulations of the college as well. This means in the case of a student that the college would be able to establish regulations on how their members supervise students and then clearly identify students.

If in the opinion of the college it’s not appropriate to be consenting to or supervising anyone other than students, then they simply do not have regulations applying to anyone other than students. This very clearly deals with the issue brought forward by the AARN, because it is entirely up to the college, such as the AARN, to determine whether or not their members are going to be supervising and giving consent to others in the provision of restricted activities. [Mr. Tannas in the chair] The next

section deals with again some clarification having to do with councils, panels, and committees. In the next we’re dealing with changes in the College of Alberta Denturists, removing “assess and diagnose” and substituting “assess, diagnose and treat”. This is to bring the legislation into conformity with federal narcotics legislation. In V we’re correcting a grammatical mistake, a typo. In (

b) we’re dealing with the “practice of medicine,” again to bring it into conformity with federal legislation. Finally, in the final

section we are correcting some words that have been left out, adding a review or an appeal or a hearing, so it’s in conformity with the rest of the legislation. That is the amendment. All of the items that I have dealt with

1592 Alberta Hansard May 10, 1999 today have arisen as a result of the distribution. In the same way that the act was developed in consultation, these amendments were developed in consultation with a number of the colleges and members who have contacted us over the past couple of weeks since the act was introduced. Most are of a fairly administrative nature, with the exception of the amendments regarding the restricted activities. I want to make it very clear that no one will be supervis- ing anyone else doing a restricted activity unless that individual’s college authorizes them.

In addition to that, the individual college must not only authorize the supervision but can also identify who the individual is that can be supervised. It’s covering both aspects off. With that, Mr. Chairman, I look forward to comments from other members. THE CHAIRMAN: The hon. Member for Edmonton-Meadowlark. MS LEIBOVICI: Thank you, Mr. Chairman. I rise to speak to the amendments put forward by the Member for Medicine Hat as well as to the bill itself in terms of generalities.

I tried to listen carefully above the din to what the member was saying and may have to review in Hansard as well some of the remarks to see whether in fact all the concerns that were brought forth in second reading have been addressed as well as some of the concerns that have been brought forward by various groups since the introduction of Bill 22 into this Legislative Assembly.

I’ve said it before, and I will repeat it, that I think the member has attempted to, in some cases valiantly, address a majority of the concerns that have been put forward, but there are some concerns that are still outstanding that I believe need to be addressed in order to give this bill perhaps the full level of confidence that is required in order to ensure it succeeds. It is a huge piece of legislation, it is a mammoth undertaking, and it is in a sense a change in direc tion with regards to the 30 profes- sions that are covered under this bill.

There is a fair degree of healthy skepticism within the communities as to whether or not this bill will work, but I believe there is a commitment by the majority of the professions to see if in fact it can work and whether it can break down some of the areas that have provided difficulties amongst the professions over the years. The issue of governance, however, I do not believe is addressed within these amendments or addr essed satisfactorily within the remarks the Member for Medicine Hat put forward.

I believe one of the key problem areas within the bill is the fact that a lot is left to regulation and a lot is left to the power of the councils of the colleges to make those bylaws and make those regulations, as the member pointed out, without n ecessarily the input of the member- ship. That is a huge concern amongst some of the professional associations, especially the psychologists, with regards to the ability of a council of a college to enact bylaws and regulations that affect their ability to practise and in fact govern their own internal abilities without any checks and balances within the system.

For instance, council could – and if this is not the case, the member can address this in future debate on this bill – in fact decide that they will provide themselves the per diem of $500 to deal with activities. There is nothing that I see within the act that prevents it, other than perhaps the overseer function of the Lieutenant Governor, and that may not in fact happen. So the concern with regards to governance that has been put forward is a major concern, and potentially in the amendments that we will be bringing forward, we w ill attempt to address that concern.

Those amendments are not here tonight however. 10:30 The other issue that is of major concern as well is with regards to the restricted activity clause, though I understand that the registered nurses who brought that complaint forward are in fact satisfied with the amendment that has been put forward by the Member for Medicine Hat.

In looking carefully at the amendments, I would have thought that an amendment that made it very clear that restricted activities that are performed are performed as assisting those who are entitled to perform that restricted activity would have been clearer than the rather circuitous way of addressing the issue that we see in front of us. In fact, a question that I would appreciate some clarification on is in

schedule 7.1. When you look at the regulatory-making powers in

section 3 on page 90 of Bill 22, it indicates: On consulting with the Health Professions Advisory Board under the Health Professions Act, the Minister may make regulations authorizing a person . . . other than a regulated member . . . to perform one or more restricted activities. Then how does that mesh with the college having the ability? Actually the sole onus appears to be on the college to make those regulations. So if there can be some explanation as to how those two sections do not in fact contradict each other, that would be appreci- ated.

The majority of the amendments that the member has put forward, other than that particular amendment with regards to the restricted activity, are in fact grammar explanatory. There are some changes that are more than that. However, I have heard that these have been requested by some groups and that this is a response to clarification within the bill as it now sits. Again, I commend the member for bringing forward amendments to the bill at this point in time as opposed to later, when there may be conflicting

interpretations that will make it harder to implement the bill. My best guess, however, is that we will be seeing this bill in some shape or form back in th is Legislative Assembly, if not in the fall session within the spring se ssion, as more kinks within the bill are worked out.

Some of the issues that have been brought forward by the various groups, whether it is the opticians, the ophthalmologists, the optometrists, the emergency medical response professionals, the nurses, as we saw just recently – whether it is on behalf of psychologists or some other group, we will in fact see that there are other areas that have been difficult to implement and may be impossible to implement given language within the bill.

An observation was made to me just this afternoon that if the bill is not tight in its construction and in its wording, then it may allow for regulations to be put in place that contradict the intent and the goodwill the member has indicated with regards to how this bill will in fact be implemented. So those are cautionary words. We have amendments as well that we will be bringing forward. As the amendment that has been brought forward with regards to

section 130(1) and

schedule 1 appears to be satisfactory to the concerns of the registered nurses, I will not bring forward an amendment that they in fact have circu- lated to members within this Legislative Assembly. What that amendment would have done would have made it very clear – and I still think that would have been better language – to ensure that we are looking at assisting in the performance of restricted activities and that students may be able to perform those restricted activities under supervision. It is a bit of a wait and see at this point.

Again, if it is not clear, I’m sure the member will do the right thing in the future and ensure that the language within this bill is very clear. As I was told in another conversation tonight, it’s not great, but it’ll satisfy some of the concerns. I know there are other members who would like to address this package of amendments at this point. Thank you.

May 10, 1999 Alberta Hansard 1593 THE CHAIRMAN: The hon. Member for Edmonton-Riverview. MRS. SLOAN: Thank you, Mr. Chairman. I’d like to begin this evening just by stating my concern that we have had this bill under construction, I believe, for about five years, with a large amount of time, money, and resources apparently spent to attempt to draft it. All of that aside, within weeks of its introduction we find ourselves in this Assembly with a document, five pages’ worth of amend- ments. I hardly think it contributes to the type of debate we should be striving for in this Assembly to have that type of last minute introduction take place, particularly on

an act that I would hazard to predict will have more impact, possibly detrimental, on the public in its implementation than perhaps any other act we’ve seen. It reminded me of a quotation I came across in a publication called Honourable Insults, A Century of Political In vective. The citation went like this. A research assistant expressed his concern to his employer MP that hi s constituents could not understand from the MP’s speech what his view on a particular subject was. The MP responded: “That is good!

It took me a couple of hours to draft the speech so it had that effect.” I would suggest that perhaps what we are attempting to do tonight more than anything else is completely befuddle the public as to how exactly the health professions are going to be governed in this province. Let me speak to the heart of these issues. The hon. member across the way has proposed amendments tonight to sections 130(1) and 136 that are an attempt to address the restricted activities.

I’d like to speak specifically to the amendments proposed to 130(1), where the hon. member attempted to reassure the public that colleges would assume responsibility for the regulation of the unregulated. In essence, what the government is saying is that colleges of professions will be responsible for the regulation and supervision of the unregulated. This is a case of ultimate off-loading, Mr. Chair- man.

The reality will be that members of professions will pay professional fees and a portion of those professional fees will go to providing the regulation of unregulated practitioners because this government didn’t see fit to make that an incorporated part of this act. In essence, it will be professional fees providing or fulfilling a governance responsibility, a responsibility that should have been assumed by the legislators in this Assembly.

That is in effect what you are saying, and that is not good enough. 10:40 If in fact what the act is aspiring to is that colleges will fulfill the ultimate responsibility of protecting the public, I would respectfully suggest that they should be allowed to fulfill that responsibility, not have the additional layer of responsibility pl aced upon them for every variety of hybrid, concocted, untrained, and unregulated professional that might be out there – pardon me; not professional but employee – now or in the future providing services to the public directly. So it’s not good enough. Not only that, Mr.

Chairman, but taking the amendments proposed to 130 and the

section then proposed in 136, which is speaking, then, to the person performing the restricted activity having to have the consent of or to be supervised by a regulated member, basically that’s all defunct by

section 3. If you look at page 90 of the bill, under

schedule 7.1, 3, health services restricted activities, it says that on consulting with the Health Professions Advisory Board under the Health Professions Act, the Minister may make regulations authoriz- ing a person or a category of persons other than a regulated member or category of regulated members under the Health Professions Act, to perform one or more restricted activities subject to any conditions included in the regulations. So in essence what that says, Mr.

Chairman, is that on any given day with who knows what rationale or justification, the government has the power to determine and authorize a different category of personnel not regulated otherwise to perform restricted activities. In essence, these amendments proposed tonight offer no protection of the public, none whatsoever, because the proviso, the opt-out clause is right there in the act,

section 3. I want to make a couple of comments with respect to the health professions advisory board. It is not explicitly encompassed in the amendments before us tonight, and I would certainly question why that is if the government is atte mpting to aspire to a more compre- hensive, gapless piece of legislation. The advisory board’s role on page 22 of the bill is cited as being on the request of the Minister, [may] investigate and provide the Minister with advice related to this Act and

Schedule 7.1 of the Government Organization Act. No parameters, no framework, no

schedule of what that might include. Further, the Advisory Board must give the colleges reasonable notice of the matters to be discussed at a meeting of the Advisory Board and allow them to make submissions.

Further requirements are cited that the Board “must be open to the public” and that a “portion of an Advisory Board meeting when submissions are presented must be open to the public.” Now, the hon. member across the way spoke about advocacies and indicated that the college’s primary function would be to regulate but that they could advocate on behalf of the membership as they do now, but that can’t conflict with the regulatory role. Well, let’s just for the purposes of debate, Mr. Chairman, contemplate who or how it would