Third Session, 41st Parliament

(2018) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Thursday, April 12, 2018

Afternoon Sitting

Issue No. 113

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Routine Business

Introductions by Members

Orders of the Day

Committee of the Whole House

Bill 5 — Community Care and Assisted Living Amendment Act, 2018 (continued)

Hon. A. Dix

L. Throness

J. Isaacs

Report and Third Reading of Bills

Bill 5 — Community Care and Assisted Living Amendment Act, 2018

Committee of the Whole House

Bill 6 — Employment Standards Amendment Act, 2018

Hon. H. Bains

J. Martin

M. Hunt

A. Weaver

Reporting of Bills

Bill 6 — Employment Standards Amendment Act, 2018

Third Reading of Bills

Bill 6 — Employment Standards Amendment Act, 2018

Committee of the Whole House

Bill 11 — International Commercial Arbitration Amendment Act, 2018

Hon. D. Eby

M. Lee

Report and Third Reading of Bills

Bill 11 — International Commercial Arbitration Amendment Act, 2018

Committee of Supply

Estimates: Ministry of Labour

Hon. H. Bains

J. Martin

J. Thornthwaite

D. Barnett

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Environment and Climate Change Strategy (continued)

S. Thomson

Hon. G. Heyman

R. Sultan

J. Sturdy

P. Milobar

15:11:39, M. Lee, "or to be settled" changed to "are to be settled"

THURSDAY, APRIL 12, 2018

The House met at 1:32 p.m.

[Mr. Speaker in the chair.]

Routine Business

Introductions by Members

Hon. M. Farnworth: It’s my pleasure, in introductions today, to make acknowledgment of

something that I think is really remarkable. Everyone sitting in this House

has run for office, but very few of us in this House have actually run a

marathon. On Monday, the Clerk-at-the-Table, Kate Ryan-Lloyd, will be

running in the Boston Marathon.

An Hon. Member: Again.

Hon. M. Farnworth: Again, and no doubt setting a legislative record time.

I would ask all members of the House to wish her much luck and a very

speedy 26 miles on Monday.

Orders of the Day

Hon. M. Farnworth: In this House, I call continued committee stage of Bill 5, and in

Committee A, I call continued estimates of the Ministry of

Environment.

Committee of the Whole House

BILL 5 — COMMUNITY CARE AND

ASSISTED

LIVING AMENDMENT ACT, 2018

(continued)

The House in Committee of the Whole (Section

B) on Bill 5; L. Reid in

the chair.

The committee met at 1:35 p.m.

section 2 (continued) .

Hon. A. Dix: I just wanted to respond to the second part of the question that

the member from Chilliwack-Hope ended with before the lunch break. He

expressed concern, I believe, about the length of time information would

remain on the website about a particular child care facility or other

licensed care facility, whether it be child care or assisted living or

long-term care.

I’ll just say that updated information is provided on the website.

In other words, the reports posted will include any actions taken by

operators in response to the findings of investigations and inspections.

Those will be posted as well. If, as the member suggests, there are

minor infractions, the immediate response or the strong response of the

operator will be posted as well so that families will be able to see

that a problem was responded to right away.

While I appreciate his concern, I’d also add that in the case of

licensed child care facilities, they’re inspected at least annually, and

more frequently than that if there’s a higher level of risk, and a new

report gets posted with each new inspection. In other words, it’s both.

The information is just the information. It’s not either positive or

negative. It’s the information, fully provided, put in

context.

We don’t decide if something is major or minor. Instead, we say

what a violation might be, should it be a violation. As well, if you’re

a provider, it will also show year after year of inspections that are

very positive as well.

We don’t pass judgment. This is transparency. It allows people

seeking child care to get access to maximum information and to make

their own judgments about that information. It also assures that if

improvements are made, those improvements are reflected as

well.

L. Throness: I’m going to thank the minister for that. I’m going to surrender

the floor to my colleague from Coquitlam–Burke Mountain, who has a

couple of questions on this same section.

J. Isaacs: My questions are regarding

section 15.2, subsections (3) and (4).

Subsection (3) says a medical health officer “must promptly remove”

information respecting investigations, and subsection (4) says a medical

health officer “may remove” information respecting

inspections.

I’m wondering what the difference is. Why would one be “must

promptly remove,” and why would the other one be “may

remove”?

Hon. A. Dix: It’s the distinction between investigations, which must be removed

after five years, and inspections, which might provide a longer period,

which itself might be advantageous to the operator.

[1:40 p.m.]

In the case of investigations, we’ve said it’s five years, and

then it comes off, which is reasonable. Inspections can be left on for

longer, which may be something of benefit to the operator.

J. Isaacs: What would be an example of why an investigation would stay on

longer? Does the health officer have the authority to publish and

continue to have that information remain on the website? Whose

discretion is it to actually keep that for over five years?

Hon. A. Dix: To be clear, an investigation does come off after five years. In

the inspection case, it may actually be helpful to an operator — if you

had six or seven or eight years of inspections where there were good

results — to leave that information off. The discretion is with the

medical health officer.

L. Throness: I have something to add to that, Chair. Perhaps — envisioning the

worst-case scenario — a provider has a bad relationship with the health

authority, and the medical health officer decides on a whim to leave a

poor inspection, or an inspection by which they failed, on for more than

five years — which could damage that provider in a material way. Should

there not be some kind of limit that the government should place on its

own powers here?

Hon. A. Dix: In the case of investigation, of course, it is five years. In the

case of inspections, there’s a duty on all medical health officers to be

administratively fair. So I don’t really think the scenario being

envisioned here is one that would come about.

I think the purpose of it, the purpose of not having a limit on

inspections, is to show over a period of time that inspections have

taken place. That, generally speaking, speaks well of a licensed

facility that’s being inspected. That would be the circumstance.

Licensed facilities are inspected on an annual or, sometimes,

more-than-annual basis.

Really, all that this does is leave it to the discretion of the

health officer — the opportunity to do that. In the case of the

investigations, though, it’s clear. We’re putting a limit on five years,

and then they must come off.

J. Isaacs: The next one is

section 15.3(3), where it says: “A medical health

officer must promptly remove information that was published under this

section if a licence is subsequently issued in respect of the

community…facility.”

In other words, I’m reading this as: if an unlicensed daycare

operator — who has had an infraction in the past and has been publicly

reported on the website as unlicensed — obtains a licence, the

infraction that’s been posted on the unlicensed operator is dropped from

the website, dropped from scrutiny, dropped from public viewing, and the

newly licensed daycare operator — one and the same — begins with a blank

slate. Am I reading that correctly?

Hon. A. Dix: Here’s the purpose here. A family child care operator has three or

four children. They’re not aware of the limitation. It’s brought to

their attention by the health authority. Their infraction is not having

a licence. They get a licence. That deals with the issue of the

infraction. They didn’t know. They got the licence. So they go through

the process of the licence, which has a number of conditions, and then

they start afresh.

Someone who was unlicensed and gets a licence, in that case, would

not have the fact that they were unlicensed on their website. That’s the

purpose of it.

[1:45 p.m.]

It’s really an issue of fairness to family child care operators

who are acting in good faith. Under those circumstances, you wouldn’t

want — when they’ve done exactly what the system asks, not just now but

before now, over the last decades — to have that linger on their record

when the fact of their violation is the lack of a licence.

L. Throness: I want to follow up on that, reminding the minister that a law is

not primarily made for a lawful person. It is made for an unlawful

person and one who wants to not be reasonable.

Let me set up an absurd situation here. You have an unlawful

provider who provides terrible care. A child dies under the care of this

provider. You have investigations by the health authority, by the

coroner, by the police. There are big reports. There are news

items.

The provider says: “I want to make this go away.” So the provider

applies for a licence, cleans up the house or wherever they’re providing

care in and meets the conditions for a licence, and suddenly, all of

that record is wiped away. Isn’t that an absurd situation? It seems to

me that previously the law was being too harsh, and now it’s being too

lenient.

Hon. A. Dix: Well, it is an absurd situation. Under those circumstances,

clearly the person wouldn’t get a licence, so it doesn’t apply,

right?

The purpose of that provision — I responded to the member for

Coquitlam–Burke Mountain — was in the circumstance where a provider has

three or four children. It would be unlikely to be more. If they had

that big a facility, I think there’d be a greater expectation that they

would understand the law, just in general.

If they had that and they didn’t understand that two was the

limit, and then if they move to respond to it by getting a licence —

which is what they were required to do in 2015, in 2011, in 2007 and in

2018 — the very fact that they didn’t have a licence and they responded

to that would not be on the record. But the circumstances that the

member talks about, clearly, would lead to the person not getting a

licence.

L. Throness: There are criteria with respect to a licence. I would agree with

the minister that, under the happy circumstance where a person who

didn’t know about the licensing requirement gets one, that’s great. But

does an officer have the discretion not to issue a licence if the

applicant meets the criteria set out in the regulation?

Hon. A. Dix: Of course, I disagree with one of the member’s assertions. The law

is for everybody. It also allows all of us to understand what the

parameters of the law are and function in good faith and with

goodwill.

If you’re seeking a licence, you have to be of good character. In

this case, that test would not be met. You have to be able to provide

mature guidance to children. In the case that he talks about, that would

not be met. Of course, you have to have gone through a criminal records

check, and the results of that would have consequences.

I think, really, what this provision is…. As he noted, we’re a

little bit reversing our discussion of earlier. But in this case, this

is just to be fair to a number of family child care providers who are

seeking to follow the law and were unaware of it. That’s not a

reflection on their character. They were unaware of it.

Then, when they discovered that they were doing so, they moved

promptly and quickly to follow the law and become licensed under those

circumstances. Given the response, we don’t want the fact that they’ve

become licensed, and the fact that they may have acted as an unlicensed

child care prior to that — they’ve met all the tests of the licensing —

to be held against them. That’s the purpose of it.

L. Throness: I have one other question. Under 15.4(1)(b), “information

respecting licensed and unlicensed community care facilities generally,”

what information might be published that is not already named in this

bill — being name, address, results of inspections, investigations and

responses to those? What kind of general information would be published

under this section?

[1:50 p.m.]

Hon. A. Dix: There is nothing envisioned right now. This gives the

Lieutenant-Governor-in-Council the opportunity to add information should

that be deemed necessary in future. To add that by regulation, it would

require a regulation by the Lieutenant-Governor-in-Council.

L. Throness: I just have one further question on this bill. Often, regulatory

powers are conferred under the act by category, referring to specific

issues. I note that there is no regulatory-making power referring to

these sections in this bill or in the existing act. Is the minister

confident that the government has the power to make regulations that

refer to the clauses that are being amended in this bill?

Hon. A. Dix: Just in the interests of time, it’s under

section 6, the specific

provision we’re talking about. Let me just get it right. It’s sub

6(c.1)(i), which refers to

section 15.4(1). This paragraph will allow

regulation to be made to prescribe additional pieces of information that

must be published about community care facilities and/or assisted-living

residences in future as needed. That’s where the provision

is.

L. Throness: I have no further questions, Chair. I want to thank the

minister.

Sections 2 to 11 inclusive approved.

Title approved.

Hon. A. Dix: With thanks to the critic for his questions and for members who

contributed to the debate — my colleague from Coquitlam–Burke Mountain,

the seniors critic — I’d like to move that the committee report the bill

complete without amendment.

Motion approved.

The committee rose at 1:52 p.m.

The House resumed; Mr. Speaker in the chair.

[1:55 p.m.]

Report and

Third Reading of Bills

BILL 5 — COMMUNITY CARE AND

ASSISTED LIVING AMENDMENT

ACT, 2018

Bill 5, Community Care and Assisted Living Amendment Act, 2018,

reported complete without amendment, read a third time and

passed.

Hon. A. Dix: I call committee stage on Bill 6.

Committee of the Whole House

BILL 6 — EMPLOYMENT STANDARDS

AMENDMENT ACT,

The House in Committee of the Whole (Section

B) on Bill 6; L. Reid in

the chair.

The committee met at 1:56 p.m.

Hon. A. Dix: Perhaps the House could just adjourn for a few minutes while the

minister and his staff arrive for the committee stage.

The Chair: Thank you, Minister. This House will stand in

recess.

The committee recessed from 1:57 p.m. to 2:13 p.m.

[L. Reid in the chair.]

section 1.

Hon. H. Bains: Let me introduce my staff here first. Trevor Hughes is my deputy

minister, and Michael Tanner is labour policy, on my left

here.

I’d like to move an amendment. I move the amendment to

section 1

that is in the possession of the Clerk.

SECTION 1, by deleting the text shown as struck out and

adding the text shown as underlined:

Section 50 of the Employment Standards Act, R.S.B.C. 1996, c.

113, is amended

(

a) by repealing subsections (1) and (2) and substituting the

following:

(1) A pregnant employee who requests leave under this subsection

is entitled to up to 17 consecutive weeks of unpaid leave, which must be

taken during the period that begins

(

a) no earlier than 13 weeks before the expected birth date,

and

(

b) no later than the actual birth date

and ends no later than 17 weeks after the leave

begins.

(1.1) An employee who requests leave under this subsection after

giving birth to a child is entitled to up to 17 consecutive weeks of

unpaid leave, which must be taken during the period that begins on the

date of the birth and ends no later than 17 weeks after that

date.

(2) An employee who requests leave under this subsection after

the termination of her the employee’s pregnancy

is entitled to up to 6 consecutive weeks of unpaid leave, which must be

taken during the period that begins on the date of the termination of

her the pregnancy and ends no later than 6

weeks after that date. ,

(

b) in subsection (3) by adding “ who

requests leave under this subsection ” after

“ employee ” , by striking out

“ she ” and

“ her ” and substituting

“ the employee ” in both

places and by striking out “ subsection

(1) ” and substituting “ subsection (1),

(1.1) ”, and

(

c) by repealing subsection (5) and submitting the

following:

(5) If an employee on leave under subsection (1) or

(1.1) proposes to return to work earlier than 6 weeks after giving birth to

the child, the employer may require the employee to give the employer a

medical practitioner’s or nurse practitioner’s certificate stating the

employee is able to resume work.]

On the amendment.

Hon. H. Bains: Madame Chair, we will be recollecting here very

quickly.

The reason for this amendment that we’re proposing, an amendment

section 1, is it simply removes the references to “her” and “she” in

the pregnancy leave provisions to make the language gender neutral. I

want to make sure that the legislation is inclusive and recognizes

individuals who may be eligible for this leave but do not identify with

gender-specific pronouns.

Amendment approved.

Section 1 as amended approved.

section 2.

[2:15 p.m.]

J. Martin: Just a couple of things for clarification in this section. As a

bit of a data geek myself, I’m always kind of curious where numbers come

from.

Maybe you could tell the House, Minister, how we move from 35 to

61 in (b): “in subsection…by striking out ‘35 consecutive weeks of

unpaid leave…’ and substituting ‘61 consecutive weeks….’” Is there a

particular rhyme and reason why we ended up at 61?

E. Foster: I seek leave to make an introduction.

Leave granted.

Introductions by Members

E. Foster: It’s my great pleasure to introduce a group of grade 5 and 6 students

from the Vernon Christian School that are here visiting today to see the

Legislature. I was glad they were able to get into the House and actually

see what I think is the real meat and potatoes of legislation, which is the

committee stage.

As my former colleague from Surrey Dave Hayer would say, they are from

one of the best schools in British Columbia. Would the House please make

them welcome.

Debate Continued

Hon. H. Bains: Thank you very much for the question. It is to line up with the

federal EI benefit changes that the federal government brought in. It

used to be 35 weeks, and now a birth mother is entitled to 61 weeks.

It’s so they can take full advantage of the federal EI

benefits.

Section 2 approved.

section 3.

J. Martin: A similar type of inquiry. If we could get some rationale on the

move from eight weeks to 27 weeks and, we may as well at the same time,

the rationale for doubling 26 weeks to 52 weeks.

Hon. H. Bains: I think, when you look at the entire bill here, what we’re trying

to address, Member, is that as the federal government made changes to

the EI benefits to the birth mother and to the parents, they have

extended EI benefit levels — what they were entitled to before and what

they are entitled to today.

[2:20 p.m.]

What we are doing is making sure that whatever the federal

government did to extend the EI benefit for the birth mother and to the

parents, we allow them to have a leave corresponding to the benefits

that they’re entitled to, so every

section that you will see is exactly

what we are trying to do here.

How do we come up with those numbers? Again, we just follow the

federal EI benefit length of time they are entitled to so that they have

leave and enjoy being with their birth child. At the same time, when

they decide to go back to work, the job is there for them. The employer

is required to give them leave while they’re caring for their

child.

J. Martin: We do know that, from time to time, particularly when there’s a

change of administration in Ottawa, the eligibility for EI benefits is

tinkered with, not so much here but in other parts of the country.

Theoretically, it could happen here — a new administration or maybe some

type of reworking of the benefit package overall. What would happen if

that was to change? Would you have to bring forward amendments to

correspond once again to the federal numbers?

Hon. H. Bains: This provincial government will decide when and if we make any

changes to the Employment Standards Act. The federal government can make

changes, but then it will be up to the provincial government to either

comply with what they have done or decide not to do it. These changes

were made some time ago, but now is the time that we decided British

Columbian parents must be accommodated so that they can take advantage

of the benefits that they are entitled to under the EI

changes.

So we’ll wait and see. When they make changes, then I think it’s

up to us to make a decision whether we make the changes or

not.

Section 3 approved.

section 4.

M. Hunt: In

section 4, we’re dealing with, in the act itself,

section 52.3.

I want to look at sections (2) and (7) of that. I just want to read them

briefly.

It says: “

(2) If a child of an employee disappears and it is

probable, in the circumstances, that the child’s disappearance is a

result of a crime, and the employee requests leave under this section,

the employee is entitled to unpaid leave for a period of up to 52

weeks.” And (7) says: “If requested by the employer, the employee must,

as soon as practicable, provide to the employer reasonably sufficient

proof that the employee’s child has disappeared in circumstances in

which it is probable the disappearance is a result of a

crime.”

Sounds interesting, but my question comes to the practicality of

this. Let me give you two very simple examples. One, of course, a local

Victoria one from the 1990s, is Michael Dunahee. How would that apply in

his situation?

Or currently we have the situation happening in Montreal, where,

on March 17, a ten-year-old boy went off to see his friends and never

returned. The police figure that it was a drowning, so for the last

month, when the ice conditions are appropriate, they have been searching

the St. Lawrence River to see if the child is there. They have now

stopped the search of the St. Lawrence River, and the father is saying:

“Well, why aren’t you investigating an abduction on this?” They’re

saying: “No, this is just a normal disappearance.”

We certainly have members of the House here who are former police

officers or members of the RCMP. And certainly these investigations go

through a process. Usually it starts as a missing person. Then it might

escalate from a missing person across periods of time — this sort of

thing.

My question is a very simple one. Often during the process, we

don’t know that it’s criminal. We don’t have any of this. So we’re

saying that if a child disappears, they have no ability to get leave

until, all of a sudden, at some point in time, we can have a probability

of a crime. I would like the minister to please explain how this is

going to practically work in those types of escalating

situations.

[2:25 p.m.]

Hon. H. Bains: Good question, Member. I’d just say that most employers are very

reasonable people. All we’re trying to do through this bill is avoid a

situation where a 14-year-old or 15-year-old has a fight with a mom and

dad and just walks away. That’s not what we are talking

about.

I think what we are talking about is, as most other jurisdictions

have in their legislation right now, it provides leave for a similar

requirement. The purpose is to provide proof of an employee’s

entitlement. It’s not required in every case. It will not be required in

every case. What do you go by? You go by, in most cases, a copy,

perhaps, of the report to the police or documentation that the police

are investigating the disappearance as a possible crime. I think that

should be sufficient.

It is not hard evidence that a crime has occurred. The report to

the police, the examples that you have used, will fit that. It’s not

real hard proof that the police said: “We have evidence that somebody

did this.” I think it is just to satisfy the employer. In most cases,

the employer will not even ask for this kind of thing. If they do,

usually they do have a relationship with the employees, and they know

what the circumstances are.

I think it is something that is being practised in every

jurisdiction out there. I haven’t seen any big issue coming out of those

jurisdictions.

M. Hunt: While I certainly don’t disagree with the minister that most

employers are very practical and reasonable, especially in these types

of situations, my only concern is that the legality of what we’re

creating here says very specifically that this is “as a result of a

crime.”

Now, I realize that provincial bureaucrats are very generous

people that always interpret things very generously, but I would argue

that some of us are in politics because common sense isn’t always

applied to the rule of law. What can I say? This is the real world. As

soon as you put those words in there, you have given a tool that says to

the distraught parents: “You can’t get leave. You have no rights under

the Employment Standards Act to get leave in the midst of the trauma

that you’re in.”

Now, I do not disagree with the minister in any way, shape or form

over the example that he uses, where the parents have a fight with the

teenage kid and the teenage kid ups and leaves and that sort of thing.

That, to me, is so different.

We must be able to find, in all of the wonderful minds that we

have within the ministry, a better way to describe this than tying it to

crime, versus the illustration, which I think we all agree with, that

there’s a family disruption, the family is having an argument, and the

kid stomps off. In those cases, sure enough, they can be gone for years

as well. We certainly have lots of cases of that happening. But often in

those sorts of situations, again, the police find they don’t want to

communicate, but we know the person is alive and well. And it’s left

there.

[2:30 p.m.]

It’s just this piece of it that, to me…. I get very, very

concerned that it’s too restrictive in the way that the minister is

choosing it to be, and I would ask for the consideration of some other

language, rather than directly tying it to crime.

[R. Chouhan in the chair.]

Hon. H. Bains: Member, I fully understand, because I have been on the other side,

where an unreasonable employer can demand unreasonable kinds of

requests. But they are very few and far between. I must say

that.

Now, if you take a look, it says, though, that the employee’s

child has disappeared in circumstances in which it is probable that the

disappearance is a result of crime. That’s the language being used.

Probable is not must. So I think there is room here that we can rely on.

If these circumstances are such that it is probable that there’s a

crime…. Either a child is kidnapped or a child may have been in a

custody dispute and taken away against the law. Those are probable

causes, and that’s what employees are required to do. No more than

that.

A. Weaver: I have but one question, dealing with

section 4. It’s with respect

to 52.4 and the leave respecting death of a child.

First off, please let me commend government for bringing this

forward. It’s overdue, and it’s well received. I do appreciate this

legislation.

With that said, there are two aspects that I was wondering if the

minister has had the time to think about. Number 1 is stillbirths. The

bereavement that a family can actually feel from a stillbirth is

profound. The question is: does this legislation take into account

stillbirths? Number 2 is late-term miscarriages. Again, knowing people

who have suffered through late-term miscarriages, a child can be very

recognizable, and funerals can happen, and bereavement is very, very

real and long-lasting.

My question to the minister is: would this legislation cover

compassionate leave for both cases of stillbirth and late-term

miscarriages where bereavement leave is sought?

[2:35 p.m.]

Hon. H. Bains: The stillbirth part of the leave we haven’t changed. It still is

under the old act.

What we are dealing with through this act is a child born, dies or

disappears. So 52 weeks to 104 weeks. But that part, stillbirth, we

haven’t touched and haven’t changed.

A. Weaver: Further, to explore this, then, is there existing legislation that

the minister can appeal to that would take into account a request for

bereavement leave that falls under the case of late-term miscarriage?

Again, let’s suppose a very sad and unfortunate event occurs, and at

seven months a miscarriage occurs.

Is there legislation that would allow the mother or the father or

the parents to actually seek bereavement leave using existing law — that

is, that would be changed, like this, to have an extended period of

time? Or with the case of stillbirth, it might be slightly different. I

recognize that that might be covered by existing law. But if the

minister could expand upon these for me, that would be

helpful.

Hon. H. Bains: The existing act says this: “An employee is entitled to up to 6

additional consecutive weeks of unpaid leave if, for reasons related to

the birth or the termination of the pregnancy, she is unable to return

to work when her leave ends under subsection (1) or (2).” So there are

certain coverages under the current act. When we were talking about,

under this new act, child death or child disappearance, we weren’t

dealing with stillbirth or termination.

A. Weaver: I do appreciate that, and I thank the minister for bringing that

forth. As we move forward, I recognize — and I hope the minister and the

ministry recognize — that this is an issue that I think, frankly, should

be treated similarly, that stillbirths and late-term miscarriages are

very real children and very real bereavement occurs. If a baby were born

and were to die one day after birth, then that baby would be subject to

a different length, a period of time, than a baby who happened to be

born when they’re stillbirth.

Maybe, as we move forward, the ministry might think about

exploring this, because I know many personal cases, and I’m sure members

here also know personal cases, where there is very real bereavement.

Unpaid leave is taken, but protection for that is important.

Hon. H. Bains: Member, thank you very much for your point — well

taken.

As you know, these are the changes, as I said earlier, to match

the EI benefit changes that the federal government brought in, so that

our parents can take advantage for the period that they are entitled to

the EI benefits.

I must tell you that I’m working to look at the larger piece of

the Employment Standards Act. There are a number of consultation pieces

going on. B.C. Law Institute is one of them that is doing it. They will

be looking at a number of different areas to bring our employment

standards and employment laws into the modern day and the changing world

of today.

I think you can expect a lot more. We will be talking to you and

others to make sure that we bring those laws up to date.

J. Martin: Still on

section 4, it wasn’t that long ago that the UN convention

rights of a child defined a child as below the age of 18. The definition

of a child for the purposes of this legislation is a person under 19

years of age. Could the minister please explain why that particular

range was selected for the definition of a child?

Hon. H. Bains: We’re taking 19 because that’s the definition of child — a person

under 19 years of age. It’s consistent with B.C.’s Age of Majority

Act.

J. Martin: Just moving on, in subsection (3). If an employee is charged with

a crime that resulted in the disappearance of the employee’s child,

they’re not entitled to the leave, or if they’re already on leave, it is

cancelled.

[2:40 p.m.]

One of the realities in our justice system is that often there’s

an overzealous rush to stack charges, which very shortly thereafter are

thinned out. We have the very real possibility that the charge that the

employee is facing is not the charge 30 days later. Would there be any

revisitation of this person’s eligibility to be able to take

part in the

program?

Hon. H. Bains: I think a situation like this, Member, that you brought…. There

are different scenarios, and individual situations will

differ.

I look at one scenario. Say a child disappears, and there’s a

probable cause that it is crime-related. You go to your employer, and

the employer approves your leave. I think what the member was asking….

Later on, through investigations, that person is charged. Then, in

further investigations, the charges are dropped. What happened to the

child, right? I think that’s what the member is asking.

I think in that situation, you could apply for leave, and leave

would be approved according to this act. Then the employer can decide to

cancel your leave, because now you’re charged. But once the charges are

dropped, you could come back and say: “Look, I want my leave back. I

still need time.” Then your leave would be approved again.

J. Martin: Would you envision that, Minister, to be a similar outcome if

someone who was charged, maybe, on two or three counts arranged for a

hasty plea deal, pled guilty to the less serious offences, and the

offence that would have been connected directly to the disappearance is

gone?

[2:45 p.m.]

The person has pled guilty to lesser charges, and none of them are

relevant to the disappearance of an individual. It’s a typical scenario

in this type of situation where there’s an abduction and a weapon is

used in it. The abduction, being the more complicated charge, is

dropped, and the person would simply take the consequence of being in

unlawful use of a firearm.

Hon. H. Bains: I think what we are talking about here is crime — somebody charged

with a crime — and the disappearance of that child. If the parents get

charged under the Criminal Code for the disappearance of that child,

that’s what we are talking about. He or she could be charged for any

different reason. That has nothing to do with this.

All we are talking about is if the child has disappeared and one

of the parents who is requesting leave is charged relating to that

disappearance of that child. If other charges have nothing to do with

the disappearance of the child, then they don’t apply here. If they are

not charged for the disappearance of the child, then they are entitled

to leave under this act.

Hon. S. Simpson: Leave to make an introduction.

Leave granted.

Introductions by Members

Hon. S. Simpson: I’m really pleased we’re joined here by a group of students from my

constituency, from St. Francis of Assisi School, grade 5s and 7s. We have 29

young people here to learn something about what we do in this place and how

we do it. They’re being chaperoned and joined by a group of teachers and

parents, including Cathy Sulmona, Josie Pauletto, Nina Sudar, Kirsten

Jansen, Catherine Palsari, Yvette Pardisio and Mandy Dio. Will the House

please make the students from Francis of Assisi welcome.

Debate Continued

J. Martin: Probably far and away, the most fundamental piece of the rule of

law is the presumption of innocence. A charge in no way whatsoever

equates to guilt. Yet we spoke yesterday about how critical, how

important, this leave is going to be for the grieving process, for the

ability for someone — for their emotions and their physical health — to

get through this.

Yet we are basically seeing a deprivation of an employment right

that we’re extending based on a charge, not on a finding of guilt. So

there is a little bit of a concern that this does fly in the face of the

presumption of innocence. I would ask the minister to share his thoughts

on that.

Hon. H. Bains: Hon. Chair, I ask leave to make an introduction first.

Leave granted.

Introductions by Members

Hon. H. Bains: In the gallery — I think they are just about to leave — Mr. Saho Deol,

a long-term leader of the community, along with Mr. Satnam Sahota and one

other guest from India who is visiting us here in Canada. They’re here to

visit us and see how the proceedings of this House work. Please help me give

them a warm welcome.

[2:50 p.m.]

Debate Continued

Hon. H. Bains: Member, remember that we are using the language that every other

jurisdiction in Canada that has this act is using.

I think what you’re trying to avoid is a situation where…. We are

trying to accommodate parents who have lost their child or their child

has disappeared so that they are accommodated for leave to grieve and to

support each other. You don’t want to be in a situation where one or

both parents are involved in criminal activity. God forbid. Who does

that?

But if the police charge them with the disappearance of that

child, I think there would be very strong opposition from the employer’s

side. “They are involved in the disappearance,” they would say, “and

they’re charged, and now you’re punishing us to give them leave.” That

wasn’t the intent of the act.

I think we’re just trying to create a balance here. We followed

what the other jurisdictions have done, and it has worked. I’m sure

there’s always room for abuse, but that is very minor if something ever

happens. I think the intent here is that all those parents, when they

lose their child or when the child disappears, have time to

grieve.

J. Martin: Thank you for the response. I only have one more question on this

section, one more question on the act, in fact.

This leads to what I raised in the House yesterday during second

reading. I guess I could have brought this up earlier. If we’re looking

at…. The employee is entitled to unpaid leave for a period of up to 104

weeks. What I spoke about yesterday is that in two years, an awful lot

can happen in the workplace. A job is eliminated, or the job has morphed

into something that the person 24 months later no longer has even

remotely the skill set for.

I’m curious about what the provisions would be for training, the

funding of that training or the need to recertify this person or to

certify him or her in something completely different when they return to

a jobsite, 24 months later, that they don’t recognize.

Hon. H. Bains: Member, those types of things happen every day. Whether you are

working or on a short-term leave or you’re on vacation, when you come

back, the job changes. But I get it that you’re saying that 104 weeks is

a long time if they exercise the entire period of 104 weeks. Things

change. I get that. But I think even under the act today, this is what

the act requires the employer and the employees’ rights are.

It says for all leaves recognized under the Employment Standards

Act, the act requires that at the end of the leave, the employer must

place the returning employee in the same position that the employee held

before taking the leave or in a comparable position. Now, I understand

that there could be a whole department shut down. Again, it is the

employment law that will dictate what employees’ rights are when they

return to work. It happens every day.

I think that whether it is two months’ leave or one month leave,

things happen. Jobs disappear, and jobs change. When you applied for

leave and leave was granted, there was manual work. By the time you come

back…. You bring in some technology, and the job is eliminated or done

very, very differently. Either retraining or a comparable job — I think

that’s where employer and employee will sit down and work it

out.

Sections 4 to 8 inclusive approved.

Title approved.

Hon. H. Bains: Thank you, Members. All good questions. I move that the committee

rise and report the bill complete with amendment.

Motion approved.

The committee rose at 2:55 p.m.

The House resumed; Mr. Speaker in the chair.

Reporting of Bills

BILL 6 — EMPLOYMENT STANDARDS

AMENDMENT ACT,

Bill 6, Employment Standards Amendment Act, 2018, reported complete

with amendment.

Mr. Speaker: When shall the bill be considered as reported?

Hon. H. Bains: With leave, now.

Leave granted.

Mr. Speaker: When shall the bill be read for a third time?

Hon. H. Bains: Now.

Third Reading of Bills

BILL 6 — EMPLOYMENT STANDARDS

AMENDMENT ACT,

Bill 6, Employment Standards Amendment Act, 2018, read a third time

and passed.

Hon. D. Eby: I call committee stage of Bill 11, International Commercial

Arbitration Amendment Act, 2018.

Committee of the Whole House

BILL 11 — INTERNATIONAL COMMERCIAL

ARBITRATION

AMENDMENT ACT, 2018

The House in Committee of the Whole (Section

B) on Bill 11; R.

Chouhan in the chair.

The committee met at 2:59 p.m.

Hon. D. Eby: Joining me, Richard Fyfe, Deputy Attorney General, and Lauryn

Kerr, innovation adviser, Ministry of Attorney General. I look forward

to questions from the members.

Sections 1 and 2 approved.

section 3.

M. Lee: Thank you to the Attorney General’s staff for providing a briefing

yesterday at the noon hour. I have some questions to consider on

specific sections of this proposed amendment.

[3:00 p.m.]

To lead off, before dealing with the specific amendment to repeal

the definition of “B.C. Arbitration Centre” in 2(1)(c), I just want to

ask if the Attorney General would be so kind as to describe the overall

consultation process that has taken place to review and provide input to

AG ministry staff on the substance of these amendments.

Hon. D. Eby: We’ve been fortunate in the province. I imagine the member is

aware that there’s an advisory group that predated our government, which

we continued through after transition, and it is quite an esteemed

group. We’ve got a member of the B.C. International Commercial

Arbitration Centre. We have top arbitrators and counsel who work on

international arbitration in the province. We have a bencher from the

Law Society. We have the second vice-president of the Law

Society.

One of the members on this advisory committee is Henri Alvarez,

who was on the initial committee that brought in the first version of

this law in British Columbia in the ’80s, the one that we’re updating

here today. The co-chairs of the committee were Jonathan Eades, who’s a

counsel within the Ministry of Attorney General — he has an extensive

international arbitration background personally, and it’s been a

pleasure to get to know him and his expertise on this issue — and Angus

Gunn, Queen’s Counsel, who is well known here in British Columbia, both

nationally and internationally, for his arbitral expertise.

So we’ve been quite fortunate in being advised by leading

practitioners in B.C. and people with international experience as well,

on this, in coming up with this bill.

M. Lee: Thank you for that overview. I understand that there has been a

balance that has been struck here to update this act for the UNCITRAL

model law code with the 2006 amendments, as well as to take into account

best practices in other jurisdictions. Were there considerations of

certain areas of this current act that were not modified to meet the

UNCITRAL code?

[3:05 p.m.]

Hon. D. Eby: Hon. Chair, 12, 13, 16, 19 and 21 all deviate in some way from the

UNCITRAL model statute. Just as an example,

section 12, which amends

section 18 of the International Commercial Arbitration Act, changes a

word from the model statute which says that the parties “must be treated

with equality and each party must be given a full opportunity to present

their case.” It changes it to: each party “must be given a reasonable

opportunity to present their case.”

This deviation is based on an innovation that came from Australia

in its recently updated legislation, and part of the mischief that is

sought to be addressed here is the idea that someone might challenge an

award and create a delay in proceedings because they hadn’t had a full

opportunity. It was thought that the word “reasonable” might better

reflect the intention of the drafters. So it is an evolving

statute.

We looked at other jurisdictions in the sections that I mentioned

for the member. So there are some deviations, and I hope that assists

the member in understanding that we’ve done some work to try to make

B.C.’s statute responsive to developments even since the model

legislation was introduced.

M. Lee: On

section 3, just to ask specifically on the deletion of the

reference to the B.C. arbitration centre. I understand that there are

other arbitration entities in the province of B.C., and I think that

that was a consideration — but if I could ask for the Attorney General’s

explanation of that.

Hon. D. Eby: The definition is being repealed to bring the legislation in

conformity with the UNCITRAL model law. The definition is problematic to

start with. It’s a B.C. arbitration centre. What it intends to refer to

is the B.C. International Commercial Arbitration Centre, the BCICAC,

which is located in Vancouver. This organization exists, but it is not

called the B.C. arbitration centre.

These are some of the challenges of including these names in

legislation. Reference to the term is being eliminated through the act

in order to ensure compliance with the UNCITRAL model law so that

international arbitrators understand what’s going on. Part of the idea

here is to ensure ease of understanding for international

parties.

Section 3 approved.

section 4.

M. Lee: On

section 4, the deletion that’s being proposed leaves in the

words “an institution” in sub 2(2). Is there a reason to leave those

words in? Meaning: are they not already just covered under third

party?

[3:10 p.m.]

Hon. D. Eby: The existing subsection 2(2) that’s proposed to be modified here

follows the model law provision, but it has the B.C. arbitration centre

inserted into the provision as an example of an institution that can

administer an arbitration. There is no such organization as the B.C.

arbitration centre. It means to say the B.C. International Commercial

Arbitration Centre.

The challenge that’s being addressed here is…. It’s a bit of

future-proofing of the legislation. We could change it to the B.C.

International Commercial Arbitration Centre, but if that group ceased to

exist or changed its name to something else…. It avoids the legislation

becoming out of date.

The idea here is that we ensure understanding by international

arbitrators, in that it’s consistent with the model law wording. In

including an institution, it future-proofs the legislation in the event

that the BCICAC might change its name. This amendment is not intended

to…. We don’t believe it has any effect on the kinds of bodies that can

administer arbitrations.

Section 4 approved.

section 5.

M. Lee: On the reference in

section 5, it certainly adds to the existing

section 6 of the act, in terms of questions concerning matters governed

by this act that are not expressly settled in this act are to be settled

in conformity with the general principles on which this act is based. In

the proposed amendment in this bill, there is no definition of what

these general principles are. I would just ask the Attorney General how

these general principles are intended to be defined or interpreted by

arbitral tribunals or the courts.

Hon. D. Eby: This wording comes expressly out of the model law. We believe that

it’s not a defined term in the model law, nor is it a defined term in

our proposed legislation in front of the House here.

It’s our understanding that UNCITRAL left it intentionally open

for an international audience that is familiar with international

arbitration general principles, experts in law on these general

principles — to leave it open as a non-closed category of general

principles of international arbitration. We’re incorporating this

directly from the model law.

Section 5 approved.

section 6.

M. Lee: A question just regarding the definition of arbitration agreement

that is being proposed here in the bill. As I understand, there are two

forms of arbitration agreement under UNCITRAL that might be utilized.

This bill utilizes the longer form. I’d just like to ask the Attorney

General what the considerations would have been to consider this longer

form — using the longer-form definition over the shorter

form.

Hon. D. Eby: The member is correct. We chose the lengthier

definition.

[3:15 p.m.]

In 2006, when the model law was drafted, the UNCITRAL drafters

looked at the definition from the 1985 model law and proposed two

options for updating it — in particular, to have a language that

accounts for a more modernized definition. One was really specific, and

one was more general.

When we did a scan of jurisdictions that have implemented this

model law around the world, we saw that the leading jurisdictions

selected the lengthier and more comprehensive definition of arbitration

agreement, including arbitration agreements entered into through

electronic communications. We also looked to the Uniform Law Conference

of Canada, which did a thorough review and recommended, as well, the

lengthier definition. The proposed amendment that’s here follows the

comprehensive model law option, which the Uniform Law Conference of

Canada recommended.

What the effect of this amendment is, is that it will clarify and

simplify determinations of when parties have entered into an arbitration

agreement. It will clarify the scope of arbitration agreements — namely,

that they’re broad. It will bring B.C. into conformity with standard

international commercial arbitration practice. Specifically, looking

domestically, Ontario adopted the lengthier definition. Internationally,

both Australia and Singapore adopted the lengthier

definition.

M. Lee: Just staying with this

section of the bill, this section, in terms

of that definition of “arbitration agreement,” also expands and includes

the definition of arbitration agreement in writing to respective oral

agreements. Under the current act, the only way that an oral arbitration

agreement can exist is if one party alleges that such an oral agreement

exists and the other party does not deny the existence of such an oral

agreement.

This bill would change that under the definition of an arbitration

agreement in writing. I understand that Singapore has similarly expanded

this to include oral agreements. I’m asking if the Attorney General can

just share the review of that change in this act, given the nature of

dealing with oral agreements and the sometimes questionable nature of

those considerations.

Hon. D. Eby: Obviously, there are concerns with oral agreements. One of the

concerns is certainty that the agreement will be upheld. So the proposed

amendment here, subsection (4), has a deeming provision that essentially

deems an oral agreement to be equivalent to an agreement in writing, for

the purposes of this model legislation or for the purposes of our

legislation, if its content is recorded in any form. That’s whether or

not the arbitration agreement or contract has been concluded orally, by

conduct or by any other means.

The hope here, obviously, is that if the oral agreement is

recorded, we can have that goal of certainty and also provide some space

to have an oral agreement within the legislation.

Section 6 approved.

section 7.

M. Lee: In this particular

section of the bill, there is an amendment

proposed to

section 8, sub (1), of the stay of legal proceedings to

provide a more generic reference to litigation proceedings and bring it

more in conformity with the model law. I just would like to ask the

Attorney General to consider if there’s been any discussion as to this

change. I appreciate that in the original act, “service of any pleadings

or taking any other step in the proceedings” was very much tied to the

B.C. context.

With this change to a more generic form to be more user-friendly

internationally, does the Attorney General consider this to be a

different meaning, potentially, that could be interpreted even in

something that might occur in a B.C. jurisdiction?

[3:20 p.m.]

Hon. D. Eby: This amendment is intended to remove language which is quite

dated, “service of any pleadings or taking any other step in the

proceedings,” and replace it with: “submitting the party’s first

statement on the substance of the dispute.”

Now, the current language in the law uses terminology that’s very

specific to civil procedure rules in British Columbia. However, this act

is not intended for a domestic audience. It’s intended for international

commercial parties, who are likely not familiar with B.C. civil

procedure. The idea here is that changing the language to “submitting

the party’s first statement on the substance of the dispute” will be

just more easily understandable and will be clearer for commercial

parties from around the world.

The new terminology is in conformity with the UNCITRAL model law.

It’s important to note that it’s not identical to the model law

provision, in that we’re maintaining what was an innovation in B.C. of

requiring that the action be done before submitting the party’s first

statement, instead of not later than submitting the party’s first

statement, which is the model law. We think that it provides greater

clarity for parties around timing — the wording of “before submitting

the party’s first statement” instead of using the model law wording of

“not later than submitting the party’s first statement.”

Sections 7 and 8 approved.

section 9.

M. Lee: This

section 9 of the bill raises the threshold for when there are

justifiable doubts as to an arbitrator’s independence or impartiality,

in effect amending

section 12 of the act. I appreciate that what’s been

included here is that justifiable doubts exist only when there is a

“real danger of bias.” That is a higher standard that’s being utilized

here.

Can the Attorney General share with the House whether this test

has been defined in other jurisdictions in common law or any other

customary international law which Canada might recognize or turn to for

assistance in the

interpretation of that test?

Hon. D. Eby: This amendment, on its face, clearly does and is intended to raise

the standard needed for a party to challenge an arbitrator’s

independence or impartiality. When we did our scan of jurisdictions

where international arbitrations take place, it was identified that

several jurisdictions, including England and Australia, had raised the

bar for these challenges to arbitrator independence or impartiality from

“justifiable doubts,” which is a term of art, to the higher standard of

“real danger of bias.”

The goal was to curb low-merit, disruptive challenges to the

arbitrator. We see some real benefits for an international audience in

this, in raising this bar, because there had been problems in

international commercial arbitration practice where parties used

low-merit challenges to arbitral independence and impartiality as a

strategic tool to disrupt the arbitration.

We think this might be an attraction to come to British Columbia

to resolve disputes, which is part of the goal of this legislation, if

parties can be sure that these low-merit challenges are less likely to

take place. The effect of this legislative change to the International

Commercial Arbitration Act will be functionally, then, to support

arbitration efficiency and to encourage parties to choose B.C. as

governing arbitral law.

principle of “real danger of bias,” and Australia has also taken this

approach in recently revising their international commercial arbitration

legislation as well. I note for the member that this is an innovation on

the model law, so it’s not contained in the model law.

Section 9 approved.

section 10.

M. Lee: Just on

section 10(

b) of this bill, there’s an amendment proposed

section 16 of the act, which is a departure from the model law, but I

understand that Singapore and Ontario have both made this similar

change.

[3:25 p.m.]

It’s not just a case where a tribunal has ruled that it has

jurisdiction but also a case where it has ruled that it doesn’t have

jurisdiction. That can be raised with the Supreme Court to decide the

matter. With this departure from UNCITRAL model law, I’d just like to

ask the Attorney General whether there has been any comment or

consideration as to whether that departure would have any detrimental

effect, in terms of B.C. being an attractive venue for international

commercial arbitration.

Hon. D. Eby: The member refers to subsection (

b) in the bill which amends

subsection 16(6) in the act. The effect of this amendment — the member

is right about Ontario and Singapore — is to allow a party to appeal not

only a positive jurisdictional ruling but now also a negative

jurisdictional ruling. We do that by removing the language “that it has

jurisdiction.”

It does indeed expand the scope of authority for a party to

appeal, raised either at the beginning of the case or during the

proceedings, when jurisdiction is decided by the arbitral tribunal as a

preliminary question. The importance of Ontario and Singapore is that

these are recent amendments that they’ve made to their legislation,

clearly responding to demand that they’ve identified — Singapore being

an international centre for arbitrations that’s very well known, and

Ontario trying to be.

Sorry, I might have sounded a little disrespectful. Ontario has a

number of international arbitrations as well. We just want to do more

here in British Columbia. But there are a number of jurisdictions, in

fact, beyond just Ontario and Singapore, with similar provisions —

Belgium, England, France, New Zealand and Sweden — to the point where we

reasonably believe that an international audience will expect to see

something like this in a jurisdiction that they select for an

arbitration.

Section 10 approved.

section 11.

M. Lee: I appreciate that on

section 11 of this bill, it contains the

larger

section of the bill, in terms of interim measures, and primarily

imports from UNCITRAL’s model law, the Interim Measures and Preliminary

Orders provisions of that model law.

To the Attorney General: as you’ve done generally, I’d like to ask

if you could specifically make comment on any material departures from

UNCITRAL’s model law. I recognize, for example, in subsection 17.01(

c) that there’s a slight variation there. Perhaps the Attorney General

could provide a comment on that departure, and on any other departures

of any material nature, for the House.

[3:30 p.m.]

Hon. D. Eby: The material departures are sub 17(2)(e), which, in its entirety,

is an innovation on the model law.

Sub 17.01(1) — in particular, it’s just for completeness that it

includes (

e) there now, which obviously is not in the model law, because

that’s a B.C. innovation there. So it’s immaterial, but it’s just

responsive to the amendment in 17.

Then sub 17.01(3), UNCITRAL only includes (d). So the reference to

section 17(2)(

b) or (d)…. UNCITRAL, the model law, only has (d). We’ve

added (

b) in there as well.

Then sub 17.10(3), in its entirety, is a departure from the model

law.

M. Lee: Thank you for that overview. Any comment on any of the nature of

those departures as to, again, the competitive position of this

jurisdiction…. Those are intended to be innovations. I wanted to confirm

that that’s the case and there’s nothing there that would put us at a

disadvantage.

Hon. D. Eby: Our arbitral advisory committee took as the basis for the work

that we asked them to do in advising us on this that the model law was

the base.

We wanted them not to depart from it, unless the departure was

expressly to provide an advantage to British Columbia in, essentially,

competing for the business of having international arbitral matters

determined in British Columbia. So the member can take some comfort that

every departure was considered by and recommended to government by this

committee of international arbitrators, who know these matters so

well.

There is one specific provision that I wanted to provide a brief

comment on, sub 17.10(3), which is an innovation here in British

Columbia. “When requested to grant an interim measure, the court may, if

it considers it proper, refer the request to an arbitral tribunal.” This

is something that is in Ontario’s legislation.

The principle behind it really encourages the courts or provides

them with the ability to defer to the arbitration tribunal. One of the

things that is very toxic to attracting international arbitrations is

the possibility of spending years in judicial review, where courts

review the arbitrator’s decision. The reason why international companies

choose arbitration is for an expedited process to get resolution and

certainty.

[3:35 p.m.]

[L. Reid in the chair.]

If it goes through multiple court appeals and so on, and there’s

uncertainty in that regard, that detracts from our ability to attract

that business to British Columbia. So this provision here allows for a

court to say: “Although we have authority here, we are going to refer

this request back to an arbitral tribunal in order to achieve the goals

of the act here, which is an expedited resolution of international

commercial disputes.” That is why Ontario adopted this and why we’re

adopting it as well.

Section 11 approved.

section 12.

M. Lee: On

section 12, as the Attorney General mentioned off the top, this

is a departure from UNCITRAL’s model law. I appreciate the comment that

he just made in the context of any departure is reviewed by the advisory

committee. Keeping that in mind, my question, then, would be around the

standard of reasonableness with the review that has been underway for

these proposed amendments.

As this is a reduction in standard from full opportunity to a

reasonable opportunity, what are the parameters under which

reasonableness has been defined or considered in other arbitrations in

other jurisdictions as to parties coming to a common understanding as to

what that reasonable test would look like?

Hon. D. Eby: The member is right. The intention of this amendment is to reduce

the possibility of an appeal of an arbitral decision on the basis that

someone didn’t have full opportunity to present their case. It reduces

full to reasonable opportunity. It’s understood through that amendment

that, actually, that’s less opportunity. Any reviewing court would look

at that and say that full opportunity might be different than what’s

reasonable in the circumstances.

The decision behind doing that is to say that just because you’re

unhappy with the decision and the arbitration doesn’t mean you get to go

to court and say: “Well, I had a reasonable opportunity to present our

case, but it wasn’t a full opportunity.”

The full standard was understood, certainly by Australia, to be

too strict and invited too many frustrating challenges to decisions that

were good on their face and provided both sides a reasonable opportunity

to present their case. The decision was made in Australia and again

here, on the advice of our advisory group, to say that each party must

be given a reasonable opportunity to present their case, of course, but

we don’t want to see a lot of appeals that will frustrate the intent of

this act and the intent of parties initially on entering into

arbitration — to have a quick and final resolution.

The key here is that this is an innovation that we see in a

jurisdiction that does a lot of these — Australia. This is their

innovation that we’re following. We believe that one of the reasons that

Australia has been able to attract a fair amount of international

arbitration is they have

an act that is responsive to the needs of the

international arbitral community, and we would do well to follow their

lead on this particular section.

Sections 12 to 15 inclusive approved.

section 16.

M. Lee: With respect to

section 16 of the bill, I appreciate that it

follows the recommendations of the Uniform Law Conference of Canada

regarding the enforcement of consolidation agreements and adopts the

ULCC’s model law on this aspect of international commercial

arbitration.

[3:40 p.m.]

I would like to ask the Attorney General if he could explain

whether the provisions addressing the enforcement of consolidation

agreements — this particular set of provisions had been adopted in other

jurisdictions — and which jurisdictions they might be and why the ULCC’s

model law was ultimately chosen in this respect.

Hon. D. Eby: Businesses’ disputes can sometimes involve several related

contracts. The contracts will have similar arbitration clauses, and the

parties might all come together — they often do come together — and

agree that it would make sense to consolidate several related disputes

within one arbitration instead of having several very similar

proceedings.

Sometimes in the international context, disputes can arise at the

beginning about what was previously agreed to be heard together and

whether that should be enforced or not. The courts in B.C., under this

section, could be called on to determine the preliminary question before

the arbitration proceedings start. The purpose of this amendment isn’t

so much for the individual parties, but it’s to provide clarity for the

court in British Columbia as to exactly when these kinds of agreements

should be enforced.

The existing consolidation provision in the act is quite

rudimentary. The effect of this revised amendment is to provide more

direction to the courts on the topic of consolidation of arbitral

proceedings and the enforcement of consolidation agreements.

There’s a possibility that the judge that hears the matter might

be looking for more information about exactly how to consolidate. These

are not provisions that the courts will necessarily deal with every day,

so the idea is that if we provide more explicit direction to the court

on these consolidations, we can enhance the cost effectiveness of the

arbitral process because the judge has a better understanding of what

needs to be done.

Without this proper direction, the benefits of consolidation can

really be lost — if the court doesn’t know what to do on a

consolidation. The intention here is to provide the assistance to the

court that a judge would need to resolve this. So the new provision says

that the court shouldn’t order consolidation unless the parties have

agreed in advance to certain fundamental matters, including the place of

arbitration, the procedural rules for the arbitration.

As the member notes, it is an innovation from the UNCITRAL model

law. It’s recommended from the Uniform Law Conference of Canada to

really, I think, recognize the situation of Canadian jurists who would

be asked to decide these matters. That’s why Ontario adopted an

equivalent consolidation provision in its act as well. And this is: how

do Canadian courts and judges understand what the hope is for a matter

that comes before them on consolidation if we don’t provide them with a

more detailed outline?

The Uniform Law Conference of Canada, in their deliberations on

this, concluded that it’s not feasible or advisable to add a court power

to order consolidation of arbitrations in cases where all parties have

not agreed on these points. But if the parties have agreed, but one or

more of the parties refuses to honour the agreement, then in that case,

the court should be able to enforce consolidation.

We’ve seen Ontario pick this up. It’s recommended by the Uniform

Law Conference of Canada, which itself was informed by experts on

international arbitration. That went through a review process by our own

experts on the advisory panel, it was recommended to government and

government has adopted that in the bill, in this section.

Sections 16 to 18 inclusive approved.

section 19.

M. Lee: Just on

section 19 — in fact, in

part 8 — I’d like to ask this,

prior to asking a specific question around the amendment to

section

[3:45 p.m.]

Under

part 8 of the act, “Recognition and Enforcement of Arbitral

Awards,” was there any consideration by the ministry staff and the

advisory group of also imposing a limitation period, in terms of

applying for recognition and enforcement of an award, as is the case in

Ontario and in other jurisdictions like London and Singapore?

Hon. D. Eby: B.C. has a freestanding Limitation Act that has the same timelines

as were being considered here. We did consider including the limitation

within this act, but for purposes of legislative consistency, we

preferred to leave the limitation period within B.C.’s Limitation

Act.

M. Lee: I appreciate the response. I would like to ask a follow-on

question related to that. I appreciate that in B.C. we’ve had a very

effective stand-alone statute, which is now being modernized under this

bill.

A second point in this same area would be…. In Ontario, there is

also a provision that deals with enforceability of arbitral awards

against the Crown. There is a specific provision that addresses that.

Was there any consideration of a specific provision to be incorporated,

in this particular bill, for that purpose?

Hon. D. Eby: Madame Chair, we were just having a little discussion about

whether it was the Crown Proceeding Act or the

Interpretation Act, and

it turns out that it’s

section 14 of the

Interpretation Act that makes

all legislation in B.C. binding on governments. Subsection 14(1) says:

“Unless it specifically provides otherwise, an enactment is binding on

the government.” Because we have that provision in our

Interpretation

Act already, we did not include it in this act. It’s already of that

effect for the government of British Columbia.

M. Lee: Thank you for that response as well. Just to go specifically,

then, to the amendment to

section 36 regarding third-party funding. To

have a specific carve-out that “third party funding for an arbitration

is not contrary to public policy” is not in UNCITRAL’s model law. I

appreciate that that is also a B.C. innovation, so to speak. I’d just

like to inquire of the Attorney General whether there have been other

jurisdictions that have employed a similar carve-out like

this.

[3:50 p.m.]

Hon. D. Eby: This amendment is based off of Hong Kong’s legislation. It’s

needed in order to provide clarity concerning the acceptability of

third-party funding in the international commercial arbitration world.

Third-party funding is when a person who is not a party to the

arbitration agreement provides funding to a party who is a party to the

arbitration agreement in return for a financial benefit if the funded

party is successful in the arbitration.

This type of third-party funding is acceptable in international

practice because it enhances the possibility of claimants being able to

enforce arbitral rights for which they bargained in international

contracts. It’s also a common form of risk sharing — access to final

dispute resolutions promoted through risk sharing. Similar risk-sharing

funding agreements occur in some domestic disputes.

The effect of the amendment will be to signal that British

Columbia recognizes the use of third-party funding as a commercial

practice in international dispute resolution. It will remove challenges

to an arbitral award on the basis that a third party provided funding to

a party who was otherwise successful in the arbitration.

Third-party funding is common in international commercial

arbitration and in some domestic legislation in British Columbia. Not

including a provision which confirms that third-party funding is not

contrary…. There’s a double negative there. Including a provision which

confirms that third-party funding is in conformity with public policy.

Other jurisdictions have a provision like that.

See? I tried to solve the double negative to make it clearer, and

I made a mess of it.

If we didn’t have this, it could disfavour British Columbia as a

venue for international commercial arbitration because this is a

practice that is accepted quite broadly in the international arbitral

world.

Sections 19 and 20 approved.

section 21.

M. Lee: On this particular amendment to include 36.01 as a new

section in

the act, this amendment enhances the privacy and confidentiality

provisions that adds…. It’s a slight variation, I believe, from

UNCITRAL’s model law. Besides the UNCITRAL model law provision, what

other standards were considered here, whether it’s Australia or in other

jurisdictions? Did the adviser group and the ministry staff consider

what the impact would be on whether the same level of privacy and

confidentiality protection being provided under this particular

amendment is the similar protection under laws of other

jurisdictions?

Hon. D. Eby: This text is a hybrid of our current privacy provision in

section

24(5), the London Court of International Arbitration rules and the

domestic ULCC Arbitration Act. Disputes as to the scope of

confidentiality obligations in international commercial arbitration are

fairly common. These guidelines, we’re hopeful, will limit some of these

disputes.

Privacy and confidentiality, obviously, are connected and

overlapping concepts. Privacy, obviously, applies to the hearing

conducted between the parties, the arbitrator and any staff that need to

be present to assist in the arbitration. Confidentiality is much broader

and, in the international arbitration world, concerns the need to not

disclose information from the arbitral process, including the arbitral

award, to the outside world, subject to various provisions in the

act.

The existing act already recognizes that international commercial

arbitration hearings are held privately. The amendment preserves the

concept of privacy and now addresses the related need of confidentiality

— that is, the nondisclosure of information and documents from the

arbitral proceeding.

The amendment is needed in order to limit disputes regarding the

scope of confidentiality as it applies to these types of arbitrations

under the act. It’s also needed to clarify obligations in advance so

everybody knows what they’re signing up for. This amendment will allow

parties to opt out of the confidentiality obligations entirely or in

part, by agreement. Further, such obligations do not apply if disclosure

of confidential information is required by law to protect or pursue

other legal rights or such disclosure as authorized by a

court.

[3:55 p.m.]

The effect of this will be that we’ll be able to maintain

flexibility for parties when deciding to what extent they want the

proceedings to be confidential. We also hope that this will clarify

obligations that parties often assume exist but the parameters of which

can be subject to disruptive disputes and, again, a lack of certainty

and finality in the arbitration.

Sections 21 to 23 inclusive approved.

Title approved.

Hon. D. Eby: I move the committee rise and report the bill complete without

amendment.

Motion approved.

The committee rose at 3:56 p.m.

The House resumed; Mr. Speaker in the chair.

Report and

Third Reading of Bills

BILL 11 — INTERNATIONAL COMMERCIAL

ARBITRATION

AMENDMENT ACT, 2018

Bill 11, International Commercial Arbitration Amendment Act, 2018,

reported complete without amendment, read a third time and

passed.

Hon. D. Eby: Hon. Speaker, if you can give us a second here before I call the

next matter.

[4:00 p.m.]

I call estimates for the Ministry of Labour.

Committee of Supply

ESTIMATES: MINISTRY OF LABOUR

The House in Committee of Supply (Section B); L. Reid in the

chair.

The committee met at 4:02 p.m.

On Vote 34: ministry operations, $12,638,000.

Hon. H. Bains: I must say it is an honour to stand here to speak about the

2018-2019 budget for the Ministry of Labour.

Before I do that, I would like to introduce staff I have with me

to help me through this exercise. Trevor Hughes is deputy minister, on

my right; Tracy Campbell, assistant deputy minister, management services

division, on my left; and John Blakely, from the labour policy and

legislation branch of the ministry, right here behind us.

The budget this year, as other years, supports the ministry’s

overall responsibility for workers’ health and safety, labour relations

stability and to ensure that B.C.’s employment standards reflect the

needs of British Columbians.

The budget for the ministry is $12.638 million. This provides an

important increase of funding, $3 million over three years, to allow the

ministry to do a number of things. The funding will support the

employment standards branch, putting them in a better position to

respond to recommendations coming from various reviewing bodies — I

expect their reports to be in the near future — including the B.C. Law

Institute and others.

We’re planning, as we prepare to update the B.C. employment

standards, to reflect the changing nature of our workplaces. As we have

heard in this House and other places, workplaces are changing. We as

government and as elected officials must respond to those changing needs

of the workplaces, both from the employer’s side and from the worker’s

side.

[4:05 p.m.]

Our government is focused, as we have said before and I’ve said

many times, on people — putting people first, people front and centre,

when we develop our policies. As a government and as a ministry, we are

consulting widely with British Columbians to get feedback on ways we can

make those positive changes. Nowhere is this truer than the workers who

make minimum wage.

We created an independent Fair Wages Commission that visited

communities around the province and met with all sectors of the economy,

met with employers, workers, unions, business groups, academics,

economists and individual workers. Also, they looked at the experiences

of minimum wage all across different jurisdictions, the history of

minimum wage increases in B.C. and the impacts of those increases to

both employers and workers.

The commission prepared unanimous recommendations on the path to

reaching and surpassing a $15 minimum wage. What I’m really happy

about…. That commission, they were…. If you look at the makeup of that

panel, we have a very highly regarded economist from the business

community. We had a very respectful union leader. We had a very

reputable economist, the emeritus professor. They have the capacity to

look beyond the rhetoric, take the information, analyze it and come back

with recommendations.

The recommendations that they came back to me with were very, very

commonsense, predictable: to provide certainty. That’s what employers

were looking for. After being appointed as minister, when I met with

different organizations representing employers and employers groups, one

thing they said was that they were looking for certainty. The report

that they gave me provided regular, predictable and commonsense

increases over four years to reach over $15 an hour for those who are

the lowest-paid workers in the province.

What does that do? They give an increase to those lowest-paid

workers, as I said, to make their life more affordable, have a few more

dollars in their pockets. As we all know, for those workers who are at

that wage rate, every increase, every dollar they receive, they will be

spending and investing within their own communities, in the businesses

within those communities. Businesses will thrive. The workers will have

a few more dollars in their pockets to have a little bit better life. As

for the government’s commitment to make life more affordable for British

Columbians, it’s on the path to achieve that.

The commission has been looking at how to raise wages for those

workers who are paid one of the alternate wages. That report is

complete, and we will be making decisions on those in the coming days

and weeks — how to deal with those five different alternate groups, such

as farmworkers and those that are liquor servers.

Then after that, the commission’s job is to look for ways…. How do

we deal with the discrepancies between the minimum wage and the living

wage? That’s a very complex area for them to consider. A living wage in

Courtenay, for example, will be much different than what it is in

Yaletown in Vancouver. You could use different examples. I think it will

be a very tough task, but they are up to it. I’m really happy and

waiting for them to come back with that report.

[4:10 p.m.]

The other thing that we are looking for is looking at every area

for the opportunity to make improvements that will better support

workers and employers. For example, in February, I named a committee of

special advisers to review the labour relations code. They are, again,

consulting with unions, employers, academics, workers themselves and

will prepare recommendations, any recommendations, to the code that will

ensure that British Columbia’s unionized workplaces support fair laws

for workers and for businesses and ensure that B.C.’s labour code is

consistent with the best practices elsewhere in the country.

I was involved, also, in the decision to appoint a new chair for

the Labour Relations Board and the Employment Standards Tribunal,

following a merit-based process. I must say that I’m really proud that

for the first time, a female chair of the Labour Relations Board is

appointed. Jacquie de Aguayo is wonderful, very qualified, very highly

regarded and with a tremendous amount of experience in labour relations.

So I’m really happy.

It just shows the changing world of workplaces. A woman, for the

first time in British Columbia, is leading a very, very major portfolio

to bring the employers and unionized workers to deal with their issues

so that they have confidence. They know that there will be fairness.

They know that their issues will be dealt with fairly. I think I’m

really, really happy that we are making those changes.

We’re also breathing new life into WorkSafe B.C. In December, I

appointed a new chair, along with new members, to the board of directors

for WorkSafe B.C. The WorkSafe B.C. board of directors is working to

deliver a new vision for B.C. workers compensation system. They are

undertaking a review of their area of responsibility for the sake of

identifying improvements. We have regulations and policies that have

been there for a number of years, and the board is taking it upon

themselves to do the review — to, again, reflect what the changes in

workplaces are and putting people first.

After all, we are all for people, both sides of the House, to make

sure that they are in the centre when they’re developing those policies

and regulations. I will soon be looking at reviewing the act itself to

see if it reflects, again, these times in workplaces in British

Columbia. Again, I think the whole focus will be to make sure that

injured workers who need help, who seek support from the Workers

Compensation Board, are taken care of and treated with respect, dignity

and compassion so that they recover and get back to their workplaces as

soon as they are ready to go back.

So there’s a lot of work to be done to better serve workers and

employers, while also ensuring sustainable economic growth. With that, I

would like to acknowledge the member from the opposition, our critic. I

look forward to any questions that he may have.

J. Martin: Thank you to the minister. This is the second opportunity that the

new Labour Minister has had through the estimates process. There is an

awful lot more material and activity that has taken place than when we

were able to go through this process last time. Before we go into

anything specific — and I’ll be starting off with the Fair Wages

Commission — I just wanted to probe some general areas with the minister

about the new reality in the workforce that he has spoken of, and many

commentators do.

It’s pretty well acknowledged that the days of landing on a career

in one’s early years and maintaining a focus in that particular sector

for a lifetime are fast coming to an end. It is very common now that

highly marketable people with a very diverse, valued skill set are

finding themselves working part-time contracts. They’re finding

themselves moving around in different, interrelated sectors. And this

has really changed the nature and the expectation of what somebody who

is going through their training and education may be encountering these

days.

I’d like to know what the government and, more specifically, the

Labour Ministry are doing to accommodate and respond to this new reality

of multiple, short-term positions, multiple careers, through one’s

tenure in the workforce.

[4:15 p.m.]

Hon. H. Bains: I think the member recognized exactly what I have said in my

opening — that we are reviewing all the different acts that come under

our jurisdiction. We are looking at reviewing the Employment Standards

Act. The Fair Wages Commission dealt with just one piece of

it.

We also, as I said, have a number of other organizations. There’s

an organization of the B.C. Federation of Labour coalition on employment

standards. They’ve done some review of the Employment Standards Act. The

B.C. Law Institute is going through a review. Their report should be

before us, I’m hoping, within a month or two months. Then they will be

leaving that out for consultation.

WorkSafe B.C., as I said, will be looking at how we look at what

we have today and how workplaces are different today than they were ten

years ago or 20 years ago. How do we change those laws, review them, to

make sure that we reflect the changing world of workplaces? Then we have

the labour code. Our labour code was last reviewed in 2003 — or changed

in 2003.

Those are areas that are being looked at — through consultation,

though. I don’t think it is the right thing to do for the minister to

sit in his office, talk to his staff and some other people and say:

“Let’s make some changes here, because I like those changes.” We are

going through a real consultative process.

You’ve seen that with the Fair Wages Commission. Now you see the

Labour Code review. They’re going through the same thing. It’s an even

further, broader consultative process they are engaged in. They will be

going into more communities than the Fair Wages Commission went to. They

are getting all kinds of submissions from all kinds of different

organizations and individuals so that they learn what the changing

workplaces are out there. How do we deal with them with our new labour

laws?

The world is changing, and we’re changing, and we need to change

with it. That’s exactly what we are doing. The part-time jobs versus

full-time jobs that used to exist…. I remember when I was working, even

at sawmills, we had three generations of people in that operation at

that time — the father, his son and his grandson. They were working

there because they felt that that was their lifelong job and the job

would be there when they retired.

That’s not the case today, as members have identified. There are

always different technological changes coming in different areas of the

workplace. We are looking at all of that to make sure that at the end of

the day, our laws reflect that changing world.

J. Martin: Another change that has been taking place for a number of years

and that has greatly enhanced the breadth of the workforce is people are

living longer, they’re staying healthier, and they’re working beyond the

traditional retirement age. In British Columbia, we have that phenomenon

happening at a greater rate than anywhere else in the

country.

In a similar vein, can the minister speak to what his government

and, more specifically, his ministry are doing to respond to the

phenomenon of more workers in their late 60s, their 70s and even beyond,

that are still in the workforce and have no intention of taking

retirement anytime soon — and what the impact of that might be on the

next generation as well as on the various sectors. It’s a phenomenon

that most of us thought wasn’t going to happen. It was actually supposed

to go in the other direction, with early retirement age, and we haven’t

actually seen that take place.

[4:20 p.m.]

Hon. H. Bains: Another very important area that the member touched on. As you

know, laws all across the country, the federal and provincial laws, are

changing. They have changed to accommodate exactly what the member has

talked about, because we’re living longer. We’re healthier. So they are

allowed to work as long as they are capable of working.

I think for our purpose, for our ministry, we want to ensure that

their health and safety is protected when they are moving into their

latter years. They have very, very valuable experience that no one can

actually get from universities. This is their life-long experience. The

people coming behind them have a lot to learn from them. They have a lot

to pass on to them.

We need to make sure that we accommodate. The ergonomics of their

workplaces need to be looked at, and their health and safety. They may

not be as quick as they were at one time. But it means that we need to

make sure that they are safe when they are doing their job.

They’re better at it because of their experience. The other

workers are coming in. They bring different skills. For example, people

of my…. I don’t know if I want to bring the critic into this. The

technological knowledge isn’t what the young 19-year-old brings to the

table today. They’re easily adopting the technological changes at

workplaces.

We need to make sure that our workers who are in their last few

years who wish to work are accommodated to work but that their health

and safety — which I’m really, really concerned about — are protected

and that they are given the support they need so that they can work as

long as they are capable.

J. Martin: Another area where we’ve seen dramatic change, particularly in

health care and the financial sector, is more and more people working

from home or working from a travelling, mobile unit. This is something

that’s been championed not just for the reduction of wear and tear on

the commuter highways and byways, but also in the need for significant

office commercial real estate.

Are the government and the Labour Ministry, to any specific

extent, moving forward with trying to enhance the amount of sectors and

deliver support to those areas where there might be a willingness to put

more of the employment, more employees, in a position where they are not

traditionally commuting to and from the worksite?

Hon. H. Bains: I firmly believe that the employer and employee working together

are the ones who are moving our economy. Employer and employee working

together create wealth for us, and them working together on how to make

their workplaces efficient and safer is what I am targeting.

My role as Minister of Labour is not to tell them how to do that.

It’s to accommodate that cooperation between employer and employees. If

they can find a way to have employees sitting at home and doing the work

on a computer, it saves the employer, and it saves, as the member has

said, a number of other areas as a society. The employee is at home, and

the employer doesn’t have to invest in capital to provide them an

office.

I think there are a number of opportunities, and many employers

are already taking advantage of them. I know some people who are working

from home, and they have that relationship with their employer. It

depends on what kind of industry you’re involved in. But I think

employers and employees are, in my view, way ahead of us.

[4:25 p.m.]

All I’m doing is making sure that I accommodate that cooperation,

that corroboration that they need, wherever I can help, when they ask

for that help. I provide them with the laws that reflect those changes.

I provide them with the support that they need to create that business

environment where they both want to work together to make their

workplaces efficient.

At the end of the day, we’re not only competing among ourselves

here in British Columbia. Today’s economies are related to the rest of

the world. We want to make sure that our employers are able to compete

with the rest of the world and that we’re good at it. I think we are

already good at it, but we can be better.

J. Martin: Thank you to the minister.

To what extent is the ministry, are we, able to forecast, over the

next ten years, the particular sectors that are going to see the most

growth in British Columbia? What type of supports and initiatives within

government can be most supportive of these emerging sectors?

Hon. H. Bains: I think that question probably should be best put to the Minister

of Jobs. Under their mandate, they are looking at the future and

long-term solutions in that area, predicting which area and which part

of the economy is going to grow faster than the others. What is the new

economy that’s emerging? I think that is something that they are looking

at. I’m sure when their estimates come, the member is welcome to ask

them that question.

I think what we are trying to do here is make sure that our laws

in health and safety and in labour reflect the changing world of

workplaces and accommodate employers and employees to make sure that we

are accommodating their needs of today.

J. Thornthwaite: My question will be different than this. Just one

question.

I attended a presentation a few weeks ago put on by Johanna

O’Flaherty. She is a personal and professional coach that helps first

responders through their critical immediate response for trauma or

critical response.

Subsequently I met a fellow named Bruce Ramsey. He’s a certified

traumatologist. He does training, counselling and intervention for

firefighters. He actually asked me to ask the Minister of Labour whether

or not there was any thought of developing a special facility or program

specific to first responders. He gave me some stats which you’re

probably already familiar with, given the announcement yesterday. But

specifically, military veterans, military veterans with combat exposure,

police, paramedics, firefighters, etc. all do experience higher levels

than the general population of various forms of trauma and

PTSD.

His question was: because there’s an increased incidence of

addiction and mental illness and suicide, is there any thought…? Has the

ministry considered a specific facility or any specific training centre

to help first responders with their identification, treatment and

recovery?

[4:30 p.m.]

Hon. H. Bains: This area, as the member knows, is a very, very serious area. I

think it crosses all boundaries and workplaces when it comes to mental

health. And the first responders are the first ones, because of the

nature of their work. That’s why we made that announcement yesterday,

and therefore, the bill is before the House.

There’s no facility, as the member asked, but I am open to the

member’s suggestion. If you have that name of the person who may have

some really good suggestions to move us in a certain direction, I’m open

to that. If you could pass that name on, and then my staff will contact

them and take that information.

Having said that right now what WorkSafe B.C. has is what they

call the First Responders’ Mental Health committee that they’re working

on.

[R. Chouhan in the chair.]

It was formed in 2015 to provide cross-organizational leadership

and best practices to promote positive mental health for first

responders. It’s called R2MR — Road to Mental Readiness. The mission is

actually to promote positive mental health and provide leadership

resources, awareness, education, training and support which the first

responders, their communities and their leaders might need. So there’s

that work going on. Also, to develop a toolkit of best practices or

resources for employers, supervisors and workers to support mental

health in the workplaces.

The committee also met with the Justice Institute, the primary

trainer of the new first responders — recruits — to ensure that the

material would be incorporated into new recruit training. I think that

work is proactive work — that when you are going for those jobs,

recruitment process, that you are given that toolkit. You are given the

education and the awareness of what you’re walking into, because at that

younger age….

Many of them come at a younger age. They think nothing’s going to

happen to them. But when they experience a dramatic experience at their

workplaces, we all know what happens. So we are trying to get them the

support that they deserve in a timely fashion.

So this is the kind of work that is going on right now through

WorkSafe, but I welcome the member’s suggestion that if the person that

the member talked about…. If you could speak to them, and if they have

some suggestions, then we certainly are open to that.

J. Thornthwaite: Thank you very much for that offer. I definitely will pass on the

individuals that I referred to.

[4:35 p.m.]

I did get a brief instruction from him about the WorkSafe B.C.

program, which they did commend. But one of the issues that is different

than traditional treatment facilities or treatment programs is that, to

be effective, it’s actually the peers that have to be part of that

immediate critical crisis management. So the program that he’s familiar

with…. There’s actually an institution in Massachusetts that does offer

this recovery centre for first responders.

One of the keys for long-term recovery — because it can occur — is

to make sure that the peers are there. So if you’re talking to

firefighters, firefighters from that same area have to be with that

critical management team.

In either case, I appreciate the offer. I will get you the

information, and you can take it from there.

J. Martin: We’ll turn our focus for a little while and probably revisit it a

bit over the duration, specifically on the Fair Wages Commission that

you provided an overview of.

So can the minister tell us if the budget for the commission has

changed from the original of, I believe, $490,000 over two years? It was

$240,000 for ’17-18 and $250,000 for ’18-19. Are we still on track for

the same budget?

Hon. H. Bains: Member, no change to that budget.

J. Martin: Can the minister tell us if he accepted all of the recommendations

in the report?

Hon. H. Bains: Yes.

J. Martin: Among other things, the report did call for a permanent

commission. The minister accepted this recommendation. Can he tell us

how much this is going to cost and provide some details around the

permanent commission?

Hon. H. Bains: The current budget is until March 31, 2019.

I also want to correct myself when I said I accepted all

recommendations. I think one of the recommendations was from the

commission to have that commission established for longer terms, and we

haven’t made that decision yet.

J. Martin: Can we expect a timeline of when there may be some finality about

accepting or rejecting the recommendation for some permanency with the

commission?

Hon. H. Bains: As the member knows, the mandate of the Fair Wages Commission was,

first, to come up with recommendations to deal with the general minimum

wage, and they did that.

The second report is to deal with those alternate wages. The

report is sitting on my desk, and we’re considering what to do with it

and how to proceed with it.

[4:40 p.m.]

Then again, their work hasn’t ended yet. The third piece that they

have is how to deal with the discrepancies between the minimum wage and

the living wage. Each of those reports, I’m sure, will be advising us on

the role of the Fair Wages Commission — longevity, whether they should

be there on a permanent basis, or they may suggest something

different.

We will make those decisions at that time. There’s that important

piece of their task, which is to deal with the discrepancies between the

fair minimum wage and the living wage. So we still have to wait for

that.

J. Martin: The first piece of the increase in minimum wage, to $15 plus — the

initial piece of that is scheduled to come in a mere 12 weeks after the

release of the report. Does the minister think that that was an ample

amount of forewarning for the people that are going to have a

significant enhancement to their labour costs in a mere 12

weeks?

Hon. H. Bains: I, as minister, am always concerned about the businesses getting

long enough notice so that they could adjust their budgets. But I also

depended on the Fair Wages Commission’s recommendations. When they came

back with their first report…. As soon as they came down and as soon as

I had enough time to analyze and to absorb their recommendations, we

were sending out a message of what’s coming. We did as much as we

could.

Again, it is what the Fair Wages Commission came back with, with

their report. That’s part of their job. That was part of their

recommendations. When they came and when the report came, part of their

report recommendation was the first increase on June 1. Whatever

recommendations came, we considered very seriously.

Remember, it is something that we try not to interfere with.

They’re supposed to be independent and depoliticizing that system. I

think that was their recommendation. We tried everything that we could

to give as much notice to the employer as possible.

J. Martin: So in the Fair Wages Commission report, the justification for

their

schedule of minimum wage increases is that the current strength of

the B.C. economy creates an appropriate environment for these increases

to take place with minimal risk to the economy. The report also states

that: “If minimum wage increases occur during economic downturns, the

likelihood of a negative employment effect is stronger.”

So based on the warnings that an increase in minimum wage during

an economic downturn could cause negative effects on employment, can the

minister explain if or how the

schedule might be adjusted if British

Columbia’s economy were to slow in the near future?

Hon. H. Bains: As the member knows, the report is very thorough. They did a lot

of research on their own, and they hired experts as well. They came back

with recommendations that, going forward, in the next two years, they

feel that the economy will continue to grow. That’s why they gave higher

increases in the first two years, $1.30 and $1.20. They feel that in the

following two years, the economy will also continue to grow, but they

didn’t want to predict it that far out. That’s why the increases are

lower in the last two years.

[4:45 p.m.]

They also said in the report that if the economy continues on the

way it is today and if the economy can sustain higher increases, they

have left a little room so that 15 to 20 cents can be added in the last

year. But the Fair Wages Commission will be making that decision at that

time.

J. Martin: Given that, isn’t the inverse also true, that things do happen?

We’re going through some unprecedented waters right now in this country,

and there could be a downturn. Is there an ability to adjust the

schedule if we see in the next 12, 18 months that we’ve got some serious

economic challenges that were not foreseen when the Fair Wages

Commission delivered the report to the minister?

Hon. H. Bains: I’m much more optimistic, Member. And I think as you are…. I

follow what the economists said in that report. Ken Peacock is a very,

very capable economist with the business community. They wouldn’t have

recommended the recommendations that they came back with if they had

doubt that the economy could slip, but they have all the confidence that

the economy will continue to grow.

Now, we can speculate “what if.” I think, on the other hand, it

could be: “What if the economy grows even faster?” But I think that

right now what we are dealing with is that — based on the information we

have today, based on the research that the Fair Wages Commission did,

based on the recommendation of the expert that they hired — those are

the recommendations. I’m confident that we’ll go through it, and by June

2021, the minimum wage will be $15.20.

J. Martin: Well, I am, indeed, very much the optimist. However, we have to be

cognizant here. Not a single economist predicted 2008, so the economists

don’t always get it right, by a long stretch.

The point — and this is the last time I’ll step on this — is that

the minister has said that there’s an ability to enhance the scheduled

wage increases in a good, glowing next three years of economic growth.

I’m just asking if the inverse is true. If things turn down, if things

sour, if small businesses are taking a beating that they and no one else

saw coming, does the ministry have the ability to do the inverse of what

it would do during good times?

Hon. H. Bains: If you look at the report, Member, they did a history of minimum

wage increases. They went back to, I believe, 1979, if I’m not mistaken.

They looked at different times when the economies were going up and

down, but they didn’t find very much relevant to the minimum wage and

the economy. So I think we need to be careful. There are times, in the

historical changes in the minimum wage, when the minimum wage was frozen

and the economy actually went down. The unemployment rate went down. And

there are times when the minimum wage went up and the unemployment rate

went up.

So I think there are different messages out there. Basically, what

they’re trying to do is…. There’s hardly any relevance about the minimum

wage and the economy. I think page 44 clearly goes back to 1979. You

will see that from 2001 to 2010, when the minimum wage was frozen, there

were times when the unemployment rate was at 4.8 percent, 4.3 percent.

But it was frozen. But then it went up to 7.7 percent or 7.6 percent in

2009 and 2010. Then, if you look, going a further two years, when the

minimum wage was raised by $2.25, within 11, 12 months the unemployment

rate actually went down.

[4:50 p.m.]

I think there are a lot of different factors, Member. I think the

government’s role would be to work with those businesses at that time to

ensure that they have the business environment and that they have the

support of the government to make sure that businesses will continue to

thrive and continue to employ those people. There are a number of ways

the government can do that, as the member full knows.

J. Martin: The new government has introduced a number of taxes described as

needed to cool the housing market. Does the minister take into account

the effects of the newly introduced taxes on the overall economy and how

this might affect the feasibility of the current

schedule of minimum

wage increases?

I’m thinking specifically about some operations that had not been

captured previously in paying medical service premiums but do have the

payroll now that will move them toward the new employer health tax, and

they may have in their midst a significant part of their operation

employing people at the low end of the minimum-wage scale.

Has this been taken into account — the new taxes that were not

known when the minimum wage commission did their work?

Hon. H. Bains: As the member knows, the government initiated a number of tax

changes, a number of them that help businesses. The MSP premiums — when

they are eliminated, many of the employers who pay the medical premiums

will no longer be paying. So there are a number of them who will be

benefiting from it.

The PST on electricity. That is cut down 50 percent and then

removed going forward. That is another break to businesses.

Small business is getting half a percent tax break, as you know,

from 2½ percent to 2 percent. So there are a number of areas where the

government has taken initiatives to help businesses when it comes to

taxes.

Yes, some may affect where the taxes may go a little higher, but

that’s what we have told British Columbians — that some who can afford a

little better are asked to pay a little more, such as those in the top 2

percent. We have removed their tax break that they enjoyed previously so

that that money can be diverted to those people who are working and so

that we can also pay for some of these initiatives that the government

has taken.

I haven’t done the analysis, because that’s not part of my

ministry. In net gain for every employer, as per the tax changes by this

government, many are benefiting and some may be paying more. But

overall, I think the minimum wage…. We talk about economists who saw

what was going on in the past. Then they did the research in the other

jurisdictions, and this is what they came up with.

One of the things that I work with, one notion…. In a modern

society, in one of the richest countries, and the province that we live

in, I don’t think it is right for people who are working full-time to

struggle in poverty. I know that the members on the opposite side don’t

agree with that either. I don’t believe those who are working full-time

to struggle to pay rent, struggle to put food on the table for them and

for their children…. They have been wondering when this economy will

benefit them.

I think there are changes being made in the government, and I

respect the question. It’s a valid question, but I think the other

ministries are looking at how our policies are affecting the business

community.

The end goal of this government is to improve and make our economy

grow, because if an economy grows, workers are employed, and they are

paying taxes, and the taxes will pay for all of the social programs that

we all like to enjoy — the roads and the bridges that we like to build,

schools and universities.

I think that overall, it’s the approach of the government to make

sure we want to make life better for British Columbians and at the same

time create a business environment where businesses want to come and

invest, with the expectation that there will be a good return on their

investment. The government role is to create that business environment,

not to get in the way of the businesses.

[4:55 p.m.]

I think we are taking a very, very balanced approach, and I think

you’ll see that’s why, if you look at the last few months, our

unemployment rate continues to be the lowest in the country. There are

businesses that are coming, and they see British Columbia as an

opportunity to invest and get a good return on their investment. I think

we are on the right path, and hopefully we will continue to work

together, and we’ll have a better, brighter, British Columbia than even

today.

J. Martin: Still on the Fair Wages Commission, the minimum wage schedule.

Excuse the fairly in-depth

preamble, but context matters.

Alberta’s increase in the minimum wage happened at a time when

there was a variety of new pressures on small business occurring

simultaneously. They had the new carbon tax. There were changes to

Alberta’s employment standards. This was also introduced when Alberta

was experiencing a very dismal economic climate. Between January and

October 2017, they saw 5,500 small businesses close, and in 2016, they

saw over 7,000 businesses shut down.

While the increase in minimum wage cannot be pointed to as the

reason for the closure of small and local business in Calgary and other

areas in Alberta, it certainly was a factor among many, including new

taxes and raising the minimum wage during such a significant economic

downturn.

With the experience of Alberta in mind, will the minister take

into account the possibility of a slowed economy over the next year or

two and how the introduction of new taxes will affect small, local

businesses in British Columbia that are facing some challenging

times?

Hon. H. Bains: As the member knows, Alberta’s economy is completely different

than ours. They are largely dependent on oil and gas, and we are a very,

very diverse economy. Our customer bases are different. We sell our

products to different parts of the world. As we know, their economy was

going down largely because of oil prices — oil and gas prices. No one

has any control over them.

People can make political statements over there. That’s fine with

them. But the reality is that it was because of oil prices. That

government tried everything that they could to sustain their economic

activities and support business as much as they could. But soon, the oil

prices started to go up, as you know. The economy started to grow,

because everything is related to the production of oil and

transportation of oil in that province. All of the related businesses

started to come back again, and people started to work.

I think for us in British Columbia…. Our Fair Wages Commission —

the economists with their research — looked at what we do and who we are

as far as the economic activities in British Columbia are concerned and

what our future looks like in the next two years and four years overall.

They came back with these recommendations. They looked at all of that.

They looked at the historical changes. They looked at other

jurisdictions, how it affected their economic growth when it comes to

minimum wage.

Our ministries that are dealing with those areas are cognizant of

the fact that we’ve got to be always alert. You can’t be complacent,

because when economic activities and the economies of the world change,

we change. We are, relatively speaking, a very small economy. When the

United States moves one way or the other, it affects us. When Japan and

the Asian economy go one way or the other, it affects us. I think we are

at a better place, and that’s why, when Alberta was suffering due to a

downturn in their economy, we continued to grow. Our economy continued

to grow, and the unemployment rate continued to stay below the

national.

We have set ourselves in a pretty good place around the world as

far as the economic activities are concerned. We can sustain a downturn

in one area of our market, compared to some of the other provinces. I

think in the ’70s and ’80s, we probably weren’t in this situation. We

were largely dependent on the United States. Now we are diverse. I think

it’s the right thing to do.

[5:00 p.m.]

The previous government took a lot of initiatives. Our forest

industry, for example — 75 percent was in the United States. Now China

has emerged as one of the emerging economies for our lumber. India is

coming up as well, and Korea. I think we are diversifying so that we

don’t have to depend on one customer base, for those reasons I

mentioned.

D. Barnett: Work B.C., I understand, is under your ministry,

correct?

Hon. H. Bains: Member, you may be confused. Work B.C. is not under our ministry.

WorkSafe is.

D. Barnett: So the Work B.C. employment funding is not under your ministry. I

got some information that it was.

I have a question for you anyway, to do with WorkSafe. WorkSafe is

a very difficult organization. We have in our constituency offices….

Some of the saddest, hardest cases come from people dealing with

WorkSafe B.C. Do you have intentions to overhaul WorkSafe in your

mandate?

Hon. H. Bains: Member, I share your concern. I dealt with many of those people.

They came to my office. They are some of the most difficult cases, and I

brought those cases to the previous Minister of Labour’s

attention.

I will agree with the member that we need to make changes, and I

have already started that. I started with the leadership. Not that I

blame the previous leadership for anything, but I think a new vision and

a new culture are needed. A new approach is needed. That’s why I said

earlier on that it has to be people-oriented. The policies should be

developed around people.

Changes are happening. We have changed the board members,

including the board chair. I asked them, “Review your policies and

regulations,” and they’re doing that. I think that report should be

coming soon, on what changes are being recommended. Then I’m looking at

changing the act, as I said earlier. Maybe the member wasn’t here at

that time. The act needs to be reviewed, and I am going to do

that.

The whole purpose of WorkSafe B.C., as you know, or the Workers

Compensation Act and workers compensation. Going back to 1917 in British

Columbia and 1913 in Canada and other places, in the great compromise,

as they called it, the workers gave up their right to sue, and the

employers agreed to look after those workers when they were injured at

that workplace. Both of them had that commitment to each

other.

Sometimes though, I’m sure, the workers that come to your office,

Member, and that came to our offices don’t feel that their side of the

contract has been lived up to. WorkSafe will tell you of the 82 percent

satisfaction rate that they have. My answer back to them was: “I’m more

interested in those 18 percent who are not satisfied. Why are they not

satisfied? What changes do we need? What kind of cultural changes do we

need?” Cultural changes are happening as we speak, and I’m getting some

reports that they are changing.

[5:05 p.m.]

They’re hiring more staff in different areas so that they can

reply and respond to those workers’ inquiries in a timely fashion and

the workers get the support and the benefits in a timely fashion. The

most difficult part for the workers is that when they’re not getting the

income, they can’t go to work, and they get frustrated by the

complexities of navigation through the WorkSafe rules and policies. Once

the case is denied, as you know, the whole system gets in gear, and it

takes a long time for them to get the benefits that they’re entitled

to.

It’s not only just the benefit side but also the treatment side,

the care that they need. The goal should be — that’s exactly what I

relayed to the board: when a worker is injured, you treat them with

respect and dignity and then give them the support and care that they

deserve to help them get back to their pre-injury job, if that’s at all

possible.

I want to go back even a few steps earlier, before that, which

means prevention. I’m saying to them: “You must have a strong

preventative and enforcement regime so that we can cut down on those

injuries and deaths in those workplaces.” I believe firmly that the

workers who go to work must come back to their families in the same

shape that they went in, in the morning or in the afternoon, before

their shift. That’s my goal. I am working on this, Member, and I want to

thank you for bringing that up with me.

D. Barnett: Will there be some public engagement or sector engagement as you

move forward with new policies with WorkSafe B.C.?

Hon. H. Bains: Of course. As I have canvassed here earlier about other changes —

labour code changes, employment standards changes — and now WorkSafe,