1998 Legislative Session: 3rd Session, 36th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

MONDAY, JUNE 1, 1998

Afternoon

Volume 10, Number 6

[ Page 8185 ]

The House met at 2:05 p.m.

Prayers.

C. Clark: Joining us in the gallery today is a school trustee from district 42 in Burnaby. Her name is Barbara Fisher. I hope the House will make her welcome.

P. Calendino: I'd like to correct the member; it is district 41. My colleagues and I would like to join the member for Port Moody-Burnaby Mountain in welcoming school trustee Barbara Fisher. Would the House please make her welcome.

Hon. A. Petter: It is my tremendous pleasure today to welcome to the House my cousin, Frances Buchignani, and her husband Alwin from San Francisco. With them is my mom Lisl Petter, who is up in the gallery visiting us. I'd ask the House to make them welcome.

Hon. U. Dosanjh: On behalf of my colleague the Minister of Finance, I am delighted to introduce to the House 23 grade 11 and 12 students from Spectrum Senior Secondary, with their teacher Ms. Finch. They are in the galleries visiting us. Would the House please make them welcome.

J. Dalton: Visiting us today is Mr. Fred Herfst, the executive director of the Federation of Independent School Associations. I know that Fred -- and certainly I, and I hope many others -- will be very happy with the victory of Collingwood School in double-A boys' rugby on Saturday. Please welcome Mr. Herfst.

G. Wilson: Visiting us from Powell River today is Mr. Don MacGregor. The House will remember Mr. MacGregor as the gentleman who repatriated the medals of Canada's most celebrated veteran: his father. Accompanying Mr. MacGregor is Ms. Trish Schuler. Would the House please make them both welcome.

Standing Order 35 Motion

M. de Jong: Hon. Speaker, I rise today pursuant to standing order 35 for the purposes outlined to you in the letter I've delivered as of today's date, suggesting that this House adjourn and engage in a debate on a definite matter of urgent public importance -- namely, the threatened closure of the Golden Medical Clinic.

The Speaker: Thank you. Proceed with your statement.

M. de Jong: Hon. Speaker, for months now, citizens in northern and rural communities across B.C. have been without full hospital services. In Golden things are about to get worse. As a result of this government's dithering, the people of Golden are today facing the possibility that they will be without physician services following the closure of their medical clinic, which is threatened for June 19. Last night 500 people gathered in Golden to express their frustration, to the point where they have taken to writing to the Premier of the province of Alberta seeking assistance, because they feel abandoned by this government.

The prospect of being without medical services that the rest of us take for granted represents a real emergency for the people of Golden. It's urgent, in my respectful submission, that this House give clear direction to the government on this matter. I hope that the members for Columbia River-Revelstoke and Bulkley Valley-Stikine, and others, will take advantage of this opportunity to stand up and urge that this government and this House debate this very urgent matter.

The Speaker: I ask the hon. member to present to the Chair all the materials required in support of his argument.

Interjection.

The Speaker: We need your supporting documentation to the table, please.

In response, I recognize the Minister of Labour, acting as Government House Leader.

Hon. D. Lovick: There is no doubt, of course, that the issue articulated by the member opposite is serious and important. I'm sure that nobody in this chamber would for a moment minimize the seriousness of the issue.

The issue we're dealing with, however, according to the rules of this chamber -- standing order 35 -- is the urgency for debate. I would simply remind members opposite and all members of the House, and anybody who might be watching these proceedings, that we have discussed the issue of the services of doctors and the facilities in the north on numerous occasions. Indeed, the discussion is ongoing insofar as Ministry of Health estimates are ongoing. In those areas and for those reasons, hon. Speaker, it seems to me that this motion does not qualify, frankly, as a standing order 35 matter.

The Speaker: Thank you very much, hon. member. I will reserve my decision.

Oral Questions

RELEASE OF DOBBIN REPORT

G. Campbell: Hon. Speaker, for almost five months now, residents of rural communities have been without hospital services, without emergency services. My question is to the Minister of Health. Rural doctors across this province either have left their communities or are starting to leave their communities, and hospital services have not been available. The Minister of Health told all of us in British Columbia that when Ms. Dobbin's report was prepared, there would be a solution for that problem forthcoming. I understand that the minister has now received Ms. Dobbin's report.

My question to the minister is simply this: will she release Ms. Dobbin's report and solve this problem once and for all?

Hon. P. Priddy: Yesterday I received the final report from Ms. Dobbin. I think it is a very good piece of work. The ministry and my staff are currently looking at that and at what the actual costs are contained in her recommendation. I would expect that to be public very shortly, as will be the report.

The Speaker: First supplementary, Leader of the Opposition.

G. Campbell: I believe that if the minister has the report, it is time for the report to be made public to all the people in this province, particularly the people in rural communities who have been without hospital services for over four months

[ Page 8186 ]

now, hon. Speaker. Ms. Dobbin's report should be made public today. I would ask the minister to commit to make that report public to all people of British Columbia this afternoon, so we can see what Ms. Dobbin has recommended and get on with solving the rural health care crisis in British Columbia.

Hon. P. Priddy: It took a month to do the report; I got it late yesterday. I want my own staff to be able to do the analysis and formulate our response to that. I expect that it will take a day or two at the most. I think we have not only the right but the responsibility to do that.

Hon. Speaker, while many people in this province have been without services for four and a half months, let's be clear that they're without services because their physicians have chosen not to provide those services to them. It's not because of something that the government has said to them or caused them to do, or some kind of policy or some kind of regulation. Those physicians have chosen not to respond . . .

The Speaker: Thank you, minister.

Hon. P. Priddy: . . . to the emergency needs of their patients.

The Speaker: For his second supplementary, the Leader of the Official Opposition.

G. Campbell: People in rural communities feel that this government has been ignoring them. We know that in fact this government has ignored the options, the solutions, that have been put forward. This minister undertook, to those communities, that Ms. Dobbin's report would solve the problem within a month. Over four months have gone by since this crisis came to fruition -- since the hospitals were closed to people in those rural centres. So my question to the minister . . . . She says that she now has a final report.

Why did she not make the interim report available to the public so we could have taken interim steps to provide rural health services to the people in this province who need them?

[2:15]

Hon. P. Priddy: Because, as I would state and as Lucy Dobbin would state, she did not submit interim recommendations to me that would have gotten people back to work.

S. Hawkins: People and patients in rural areas have been waiting far too long for this government to solve the rural health care crisis. On April 23 Ms. Dobbin was appointed to solve the rural health care crisis. On April 24 this minister announced that Ms. Dobbin was free to give interim recommendations. Now rural patients want to know, because they've been suffering for far too long: if this minister did receive any recommendations, oral or written, why were they not released when they were received?

Hon. P. Priddy: I did not receive from Ms. Dobbin . . . . What I said to her at the time was: "If you have interim recommendations that, before the end of your report, would be successful in getting the physicians back to work, then I would be happy to implement them." Those recommendations were not there. She had ten days or two weeks left for her report when she spoke with me. There aren't some magic interim recommendations that have left people without service for two weeks.

By the way, yes -- people have been without service. And on the other side of the House, we've had MLAs standing up and supporting the fact that doctors have withdrawn services for their patients. That's unconscionable.

The Speaker: For her first supplementary, the member for Okanagan West.

S. Hawkins: This side of the House is the only side that has been speaking out for patients for the last four months. Hon. Speaker, none of those members have spoken up for patients once in this House -- not one member. Last week Ms. Dobbin told two rural physicians that she had filed interim recommendations and that this government chose not to act on them. What we want to know and what patients want to know is: why did this government not make them public at the time that she received them so patients and physicians could judge for themselves whether the rural health crisis was solvable?

Hon. P. Priddy: When I saw the quote in the paper on the weekend -- that that's what Ms. Dobbin had said to two physicians -- I called her and I asked her if she had said that. She says that she did not. Not being there for the conversation . . . . She says that she did not say that.

Hon. Speaker, let's be really clear here: $450,000 was on the table for the northern health board -- rejected by the physicians. They said $650,000 would fix it; I put $650,000 on -- rejected by the physicians. I said we could look at altering the northern isolation allowance; they rejected it. So this has not been a time of not trying to find solutions . . .

The Speaker: Thank you, minister.

Hon. P. Priddy: . . . but the ones we've found have been rejected by the physicians.

PHOTO RADAR INSTRUCTION MANUAL

C. Clark: You know, at a time when this government can't find the will or the money to solve the northern health care crisis, they can find a whole bunch of taxpayers' dough to fix and to pay for their boondoggle on photo radar. We know, for example, that this government found $400,000 to pay for a how-to manual for the photo radar program. It includes helpful advice like, "This image demonstrates a camera aimed too high," under a nice big picture of the sky.

Can the minister responsible for photo radar tell us if he thinks, at a time when government is cutting back on education and when it can't find money to fund health care, that $400,000 for a how-to manual for photo radar is money well spent?

Interjections.

The Speaker: Order, hon. members.

Hon. M. Farnworth: The payment that the hon. member talks about was part of the cost of introducing photo radar over the broad term. It was part of an agreed-to

schedule as certain parts of the program were implemented. This was done back in 1996.

Hon. Speaker, what I find interesting, though, is that they are choosing to pick apart a program and focus on a little bit here and a little bit there, when in fact that program has contributed to a reduction in accidents in this province. It is part of a program that has helped ICBC to turn a profit this year.

[ Page 8187 ]

The Speaker: First supplementary, the member for Port Moody-Burnaby Mountain.

C. Clark: The government's own bill says that they're paying $400,000 for the verification rules handbook. You know, when Elizabeth Cull gets paid $33 a word for her nine-page communications strategy, that starts to look like a pretty good deal when we're paying $152 a word for this how-to manual for photo radar. Wouldn't the minister agree that if his government is spending multi-millions of dollars on the equipment to enforce photo radar . . . ? Shouldn't the taxpayer get the how-to manual for free?

Hon. M. Farnworth: I repeat the answer to the hon. member: this is part of a broad program around photo radar, which is part of ICBC's program. It is resulting in a decrease in claims, which is resulting in a profit for ICBC in the first three-quarters of this year -- and last year -- and which is part of a program that is allowing us to ensure that we can, hopefully, freeze rates again in the coming year, just like they've been frozen for the last three years.

M. de Jong: Hon. Speaker, again I'd urge this minister, like others, to go back to his own documents, and he'll see from reading the invoice just what it was that they paid for. I'm curious -- $400,000 for a manual. There's a picture in that manual -- a beautiful picture of pavement. Of course, it is a directional piece, and the caption is: "This camera was pointed too low." Hon. Speaker, I'm trying to find where . . . .

Interjections.

The Speaker: Hon. members, order, please.

M. de Jong: I'm inclined to ask the minister whether he got Yousuf Karsh to do the pictures for this thing -- at $400,000. But what I'm going to ask him is: how does he justify spending $400,000 of taxpayers' money on a manual for a photo radar scheme that's been a boondoggle from day one?

Hon. M. Farnworth: The hon. opposition member's questions are pointed neither too high nor too low; they're just not pointed at all. The fact of the matter is that the photo radar program, which this member is criticizing the government for right now, has been so successful that we've seen a reduction in claims. That $400,000 is part of a program that saved lives across the province. Every life that's been saved is worth a lot more than $400,000. This program has once more allowed rates to be frozen -- it's now three years in a row -- claims to come down and profits to be up.

The Speaker: First supplementary, member for Matsqui.

M. de Jong: Well, you can always tell when you've hit close to the mark, if the minister doesn't want to be scrutinized line by line, invoice by invoice. He doesn't want to be scrutinized, because it won't withstand the scrutiny.

This question is pretty simple. We know . . .

Interjections.

The Speaker: Hon. members, come to order.

M. de Jong: . . . that Brian Smith was negotiating with the government on behalf of ATS around about this time. Can the minister tell us whether Mr. Smith was involved in the negotiations that gave rise to this bargain purchase of a $400,000 manual?

Hon. M. Farnworth: Once again we see that what the opposition is really trying to do is smear the name of a prominent British Columbian they happen to disagree with. Mr. Smith's role with ATS has been well documented. If that hon. member has any allegations at all against Mr. Smith, I suggest he take them outside and say them, and see how fast his head spins before he gets a lawsuit.

G. Farrell-Collins: It's amazing how sensitive the government gets when you start to get close to the mark. The reality is that Brian Smith was involved in this deal while it was being negotiated, and the taxpayers end up on the hook for $400,000 for an instruction manual.

Some of the wonderful tidbits of advice that are in this 22-page instruction manual include that photos must not exhibit errors such as "camera out of focus." The last time I bought a camera, the instruction booklet was included in it; I didn't have to pay extra. Can the minister tell us if he has read that instruction manual and whether or not he thinks it's worth the $400,000 that the people of B.C. have paid for it?

Hon. M. Farnworth: I think that any program that saves lives in this province, any program that results in a reduction of claims to ICBC, any program that's allowed us to freeze rates and any program that's part of an initiative that so far this year is continuing on that track is worth every penny that's been spent on it. Our program -- I said it once before, and I'll say it again for the hon. member's benefit -- has resulted in claims going down, premiums being frozen and lives being saved, and that's what's important.

Ministerial Statement

ENVIRONMENT WEEK

Hon. C. McGregor: I am pleased to announce that this week, June 1 to June 7, has been proclaimed by the Lieutenant-Governor-in-Council as Environment Week in British Columbia. All British Columbians can be proud that in addition to enjoying a natural environment of extraordinary beauty and diversity, this province has taken farsighted measures to preserve and sustain this heritage for future generations. Although we have put a priority on creating jobs and encouraging new investments in our economy, we have made it clear that this is not going to be at the expense of the quality of our environment.

No other jurisdiction anywhere has made a stronger commitment to sustainability, and no other jurisdiction can match the record of this province. During the past year alone, we protected the Northern Rockies wilderness, an area bigger than Nova Scotia; we introduced landmark legislation for fisheries renewal and fish protection; we launched new industrial stewardship programs to keep nearly all beverage containers out of the garbage, as well as the majority of household hazardous wastes; and new regulations came into force to ensure the cleanup of contaminated sites and hazardous spills.

At the heart of these new initiatives is greater involvement by the public, more power for local communities and, above all, practical strategies to ensure that industry, consumers and all resource users take greater responsibility for their impacts on the environment.

During Environment Week this year, British Columbians are being asked to make a personal commitment to the air we

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breathe. On Wednesday, which is Clean Air Day, our government will announce a major new market-driven initiative to address concerns about climate change. At the same time, throughout the week we are challenging British Columbians to make a personal commitment to better air quality through their personal actions. To that end, a two-part interactive television program, "Lanes, Trains and Automobiles," has been developed in partnership with the GVRD to highlight transportation issues in the lower mainland. The first episode will air on VTV on Wednesday at 7 p.m. Many other Environment Week and Clean Air Day activities are planned throughout the province.

I encourage all members to support the events taking place in their communities. Over the next few days, I hope that as many of us as possible will try to set an example by parking our cars and trying an environmentally friendly alternative such as walking, cycling, sharing a ride or using public transit. It is when we all act as stewards of our environment and put health and environmental objectives at the fore of our own choices that we truly make a difference.

[2:30]

The Speaker: In response, I recognize the member for Saanich North and the Islands.

M. Coell: Thank you for the opportunity to respond to the ministerial statement.

I think that all too often we concentrate on environment weeks and bike weeks. I think what British Columbians are asking is that every day become Environment Day and that this House concentrate on the environment every day.

We have inherited a truly great province. We are a new society in this country, and we haven't managed the environment very well. It's incumbent on all British Columbians and on all people on both sides of this House to make every day Environment Day and every day Clean Air Day.

When you look around the world, the economies that are robust and strong also have strong environmental policies. The economy in British Columbia is faltering, and every year for the last five years we've seen cuts in the Ministry of Environment. This is not good enough. The people of British Columbia all agree on the need to preserve and protect this province. We on this side of the House pledge to do our part, and we hope the government will do their part.

Tabling Documents

Hon. D. Streifel: It's my pleasure today to table the 1997-98 business plan of Fisheries Renewal B.C. It's their first business plan.

Orders of the Day

Hon. D. Lovick: In Committee A, I call the estimates of the Ministry of Small Business, Tourism and Culture. In this House, I call committee-stage debate on Bill 14.

WORKERS COMPENSATION

(OCCUPATIONAL HEALTH AND SAFETY)

AMENDMENT ACT, 1998

(continued)

The House in committee on Bill 14; P. Calendino in the chair.

section 15,

section 141 (continued).

Hon. D. Lovick: Mr. Chairman, we began discussing this important

section of the bill last week, and indeed, I think we had a good debate -- an exchange of opinion that it seemed to me was helpful to all of us. The subject we're discussing under

section 15,

section 141, is the right of workers to refuse unsafe work. I made a point at that time of saying that I had struggled mightily with what this

section had to say, and I was not persuaded by the argument that the approach we're taking in the bill was necessarily the right one. Accordingly, I want to table an amendment today on this measure, and with your permission, I shall give that to you now. I shall also, of course, make copies available to my colleagues on the other side.

The burden of the change is essentially this: what we would do is take the existing wording and delete a particular clause. The clause I am referring to is (3)(b), and it says essentially that the right to refuse unsafe work does not apply if the risk referred to is inherent in the worker's work. After considerable reflection, after some agony and some anxiety, I am persuaded that we do not need that section. In other words, the argument that the danger is not inherent in the work should not be required for a worker to refuse what is deemed to be unsafe work.

Let me explain that, if I might. I think we would all agree -- and indeed I would say, based on the conversation I had with my colleagues on the other side of the chamber last week -- that the provision as drafted, the original, places a significant limitation on the right of workers to refuse unsafe work. While we all acknowledge that there are some occupations which are inherently dangerous -- for example, police work, firefighting, etc., -- we must also acknowledge, it seems to me, that there are certain legitimate circumstances where these workers should also have the right to refuse.

In short, it's not good enough to say: "Well, your work is inherently dangerous, and therefore you will never be able to refuse unsafe work or what you deem to be an unsafe circumstance."

The example I gave last week from my own personal experience wasn't technically logging, although that was what I was doing at the time; rather, it was building a right-of-way. The faller whose job it was to knock down all those trees and so forth along the right-of-way came across a gigantic cedar snag filled with branches sticking out -- what we in the trade called widowmakers. The worker, a very seasoned and experienced faller, decided on the basis of his own judgment and experience that that snag had his number. He didn't want to fall it. I, a young university student, was a powderman at the time, and he asked me if we could blow that snag. Happily, we did so.

Now, the point there is to simply say that if you're a faller working on a right-of-way or any bush -- especially in those days, when we used to fall snags as a matter of course,

whereas today we tend to leave them standing for environmental purposes -- you can argue the case that yes, indeed, that kind of danger is inherent in the work itself. However, the point I'm making is that in this instance there's an extra dimension of danger. Logically, reasonably, we ought to say to a worker: "You have the right to refuse." Our concern, though, is that if we put in this condition about the risk being inherent in the work, that will perhaps be a higher standard of proof and will then make the workers more vulnerable. That's one example -- the one I used last week.

Another example would be a health care worker or a social worker. In the climate that we live in today, as we know, social workers are sometimes subject to circumstances and

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clients that are, frankly, dangerous. The social worker, knowing that somebody has a history of violent behaviour or abuse, or has a substance abuse problem or whatever, surely ought, in my opinion -- and I'm sure others would agree with me -- to be able to say: "Wait a minute. I am not prepared to sit down with that person in his or her living room and talk about this issue, because I'm scared -- and I ought to be able to refuse that work without penalty." If we say, however, that the danger is inherent in the work, we thereby limit that worker's right to refuse.

My point is that even in something like social work, where we wouldn't think of a risk being inherent, I would submit that today that risk probably is inherent to a depressing degree -- just as it is for, say, a parole officer. The same point obtains: namely, that what we do by leaving in this wording -- saying that if the danger is inherent in the work you don't have the right to refuse -- is impose a higher standard on the worker. We give the worker a much more potentially perilous and dangerous kind of work.

I think that there are many occupations which contain an inherent danger. Effectively, these workers -- if we left in the clause that I'm suggesting that we delete -- would not have the right to refuse in extraordinarily dangerous situations, as long as the language as originally written remains and obtains. That's why the amendment, Mr. Chairman. I want to add, though, that we have retained -- and again, I share with my colleagues opposite, especially the member for Vancouver-Quilchena and the member for Chilliwack, who also raised this issue last week . . . . Beyond making other changes . . . .

After considerable reflection and thought, I have decided to retain the current

section 141(3)(a), which states that a worker may not refuse if "the refusal would directly endanger the health or safety of another person." We've left that in because we believe that this provision is an important one. We do not want to do anything that would put another person's life, health or safety at risk because of a worker's refusal. It's also important, apropos of this amendment, to point out that the Workers Compensation Board's current regulations do not place any limitation on the refusal of unsafe work. There is no limitation.

We are not, therefore, going to depart radically from the existing system. As well, I should point out that occupational health and safety legislation in four other jurisdictions in this country -- namely, Saskatchewan, Manitoba, New Brunswick and Newfoundland -- contains the right to refuse unsafe work, without any limitations attached.

In closing, then, speaking to this amendment, I should also state that we did consider the suggestion made by the member for Chilliwack with respect to allowing for a contracting-out of the right to refuse through an agreement signed at the time of employment. On reflection and with some advice, I have to say that while I indeed appreciate the spirit and intent of that suggestion, I have real concerns that this approach would in fact leave the parties involved wide open to abusive and coercive action.

Therefore it seems to me that we ought not to enshrine that principle in the legislation. That's the reason for my amendment. Of course, I'm happy to answer questions about that amendment.

[2:45]

C. Hansen: When the minister indicated last Wednesday that he was taking a second look at this particular section, I was somewhat reassured by that. First of all, I think this legislation has arrived in this chamber prematurely. This is certainly another example in this legislation of where there is obviously an agenda to push this forward much faster than we on this side of the House feel is justified. When you start to see some second thoughts on wording surfacing while we're in the middle of committee stage, it certainly confirms that.

I think that what the minister has proposed in his amendment does not address the fundamental problem in this section. In fact, I'm not even sure that it doesn't make it worse than it was before, under the previous wording. When we're talking about the right of, say, a firefighter to refuse to go into a dangerous situation . . . . I think that's the intent behind the minister's amendment: to remove this subsection. It's to say that just because there are inherent risks in the work that is being performed means that, under the old wording, the worker would not have any rights to refuse unsafe work. By taking that

section out, I think it still leaves lots of flaws in this particular bill.

One of the things I did over the weekend was review clauses from other legislation across Canada. The minister made reference to that just now. He referred to several provinces that gave the right to refuse unsafe work, without any limitations, and I think he included Saskatchewan in that. I don't think that's the case. Certainly in some of the other provinces that he indicated, that is the case: there are no restrictions.

I'd like to suggest that the Saskatchewan legislation is something that we should model this

section after, because it is fairly well worded and may address the point that this

section is trying to address but in language that is a bit clearer. If I can just quote from the Saskatchewan legislation . . . . This is

section 23: "A worker may refuse to perform any particular act or series of acts at a place of employment where the worker has reasonable grounds to believe that the act or series of acts is unusually dangerous to the worker's health or safety or the health or safety of any other person at the place of employment . . . . "

I think that what's important in here is the word "unusual," as in "unusually dangerous." In other words, I think it captures exactly what we're trying to capture in this particular section. To say that a firefighter can refuse to go into a burning building . . . . That may or may not be unreasonable, because you wind up with a building that's on fire, and firefighters, because of the nature of their work, take certain risks. That is a normal part of the job description. What the minister is doing, by removing that

section . . . . I don't think it addresses the fundamental issue. By removing that section, now we have the ability of a worker to refuse any unsafe situation, whether or not it is part of the description of that job that the worker has applied for and been hired for.

I would like to make a suggestion to the minister which I think may address some of this. I believe that modelling this after the Saskatchewan legislation, for example, is something that we could do that would be much clearer than tinkering with words here and there in

section 141. Given that

section 141 is what's before us today, perhaps the only options we have today are to either stand this down so that it can be looked at more carefully or try to do some tinkering to improve it marginally -- although I do believe it needs a fundamental rewrite.

The tinkering that may be possible for the minister to consider is, when we're talking about "work is unsafe . . . . " Just to repeat

section 141(1): "Subject to this section, a worker may refuse to carry out work if the worker has reasonable grounds for believing that the work is unsafe . . . . " To amend that to say, " . . . for believing that the work is unusually dan-

[ Page 8190 ]

gerous," to pick up the Saskatchewan wording, may in fact capture what we're trying to do in this particular section. But my concern about taking out subsection (2)(

b) is that it does not in itself solve the problem in this particular section.

I wonder if the minister would consider an amendment to the effect of line 2 saying " . . . work is unusually dangerous" -- and then in subsection (2), where it says: " . . . for the purpose of this Division, work is unsafe if . . . " -- and then it defines it . . . . If we change that to say, " . . . for the purpose of this Division, work is unusually dangerous if . . . " I think that may go some way toward solving some of the problems with this section. I'm wondering if the minister might entertain that to go in concert with the amendment he is proposing. I think that may be an improvement, and I ask for his comments on that.

Hon. D. Lovick: I thank the member opposite for his comments. I disagree. We have looked at the Saskatchewan model and the use of the adverb "unusually," and in our opinion, it does not improve . . . . Indeed, I think it makes it less clear. You will note, by the way, that we are indeed well aware of the Saskatchewan model, because if you look at the last clause in their

section 23, and (4)(

a) and (

b) in ours, you'll discover the wording is almost a duplicate. Certainly we've had occasion to refer to the Saskatchewan model.

I think the point is that when you look at our section, what you see are those enabling clauses that set up the specificity of our language and our rules that I, frankly, think are preferable.

We make an effort, if you like, to define what unsafe work is: " . . . work activities, or the conditions of work, or the conditions that would result if the work were done are such that there . . . would be a significant risk that the worker or another person might be killed, seriously injured or suffer serious illness." Now, it seems to me that all of those adjectives that appear in there effectively do as good a job and a clearer and more definitive job than does their use of "unusually." I think if you put our language together and take out that restriction, which is the purpose of this amendment, then you have, frankly, the best of both worlds.

I think that's what our amendment does, and that's why it's a good amendment and is indeed absolutely legitimate.

C. Hansen: What I don't think this amendment or the

section as a whole does is capture the recommendation on page 56 of the royal commission's interim report where it says: "Government should also consider placing limits on or describing situations when a worker may not refuse a task. Ontario's legislation, for example, does not permit police officers, firefighters, correctional employees or certain health care workers to refuse hazardous work assignments if . . . .

" And then the first bullet is: " . . . those risks are inherent to their work or a normal condition of their employment." I think that's the key sentence: " . . . or a normal condition of their employment." The second bullet is: " . . . the worker's refusal might directly endanger the life, health or safety of another person" -- which remains in there. I do want to speak to that

section after we have dealt with the amendment.

I would like to ask the minister: how do we deal with a situation where risks are a normal condition of employment? On the one hand, what you had here before under sub (

b) was far too loose; it was placing those in hazardous industries at far too much risk. Now, by totally removing it, we've gone in the other direction. I think what is really required is that we do as the royal commission recommended, and that is to state that people cannot refuse a task where it is a normal condition of their employment. I'm wondering if the minister can tell us how we capture that particular recommendation of the royal commission, given the amendment that he's putting forward.

Hon. D. Lovick: The short answer to the question is one that I have invoked on numerous occasions in this debate so far, in the last week or so, and that is common sense. I truly believe that is the answer to much of this. To get to the specifics as to why we did not accept the royal commission recommendations, I would suggest that the answer is to be found in Hansard from last week -- in the discussion that we had when I said that I was not comfortable with this provision -- and in the rather lengthy explanation I just gave for the amendment.

I think I have explained the reason for the amendment implicitly, then, and why we didn't accept the royal commission recommendation, or at least all of it. I think that answers the question.

C. Hansen: I gather that the wording of this particular

section is not really pulled from any other particular model. I'm the first one to say that just because they do something in another province, it doesn't mean that we should do it here. There are some sections that come from different places, but this is language that is largely different from the language that we had in the regulations, which came into effect on April 15. This whole

section has largely been reworded, and I'm wondering if the minister can tell us why he feels that going this route, with the wording that is currently in 141, is preferable to putting regulation 3.24, which is currently in place under the regulations, into statute.

Hon. D. Lovick: Two points, if I might. The first is that it should be noted that the reference group -- the business and labour people -- asked us to define what was meant by "unsafe." That's the first point. The second point is that I believe the original language was talking about a duty rather than a right. The great debate, of course, is: which of those is stronger?

One of the problems is simply that when you use words like "duty," it seems to -- and I say this carefully, because I wasn't part of the discussion -- confer a legal obligation and therefore opens the door to the possible committing of offences and so forth on a regular basis. In other words, if you say a worker not only has the right but the duty to refuse unsafe work, then you are effectively saying to that person: "You had better live up to your duty, or you may end up in a court of law." That's a kind of double jeopardy that you're placing that individual in. That's the explanation to answer the question.

C. Hansen: I have certainly read the royal commission's discussion on duty versus right. I've looked at other jurisdictions. I agree with the minister's initiative in that area, but I'm thinking more generally about where, as best as I can tell from talking to practitioners in this field, the wording of the regulation has largely been successful. It's a vehicle that has been respected by most parties -- although I think there have been cases of "poisoned worksites," as we talked about before, that have used the right to refuse unsafe work as a tool for other objectives; but those are few and far between in British Columbia.

The consensus, as I understand it, is that the wording of the regulation has largely been successful, and that to change it from a duty to a right would change the spirit of the section. Overall, if we keep the wording of the regulations intact . . . . It worked well in the past, and there is no reason to assume that it wouldn't work well in the future, if it is simply brought into the statute. I'm wondering if the minister could explain why

[ Page 8191 ]

section 141 takes this different approach, when what we had before was largely recognized as being successful by most parties.

[3:00]

Hon. D. Lovick: I have two points for the member. First, the short answer is, effectively, that we are talking about a changing workplace. We are talking about workplaces in which professions that we never thought of hitherto as being in any way dangerous have now, in some cases, become almost systemically violent and dangerous -- for example, health care. There is a huge incidence of assaults and so forth in health care now, and in the past nobody ever thought of the profession of a nurse as somehow being inherently dangerous work. That's one reason.

The second reason is simply that the royal commission, after all, made some recommendations about the existing regulations that served us well for the most part, to be sure, but obviously didn't do everything we wanted -- or else we wouldn't have had those recommendations from the royal commission. The most notable of those in this instance, as I have said, has to do with the fact that they said to us: "Please define unsafe workplace."

I think those two points answer the member's question.

B. Penner: I also have some particular concerns about this amendment, as proposed by the minister. Specifically, I'd just like to ask if the minister is aware of any particular examples that this amendment or this legislation is supposed to cure. Do you know of any specific problems that have arisen in the last number of years that you are seeking to correct with this legislation?

[W. Hartley in the chair.]

Hon. D. Lovick: Certainly in generic and general terms, the field I just referred to, health care . . . . I'm not sure any longer if they're called practical nurses, LPNs or nurses -- whoever is on a floor. They, for example, are being told that they must lift that patient single-handedly, despite the fact that the patient might weigh three times what the practitioner does. That's why we have this huge incidence of muscular skeletal strain -- is that the term? -- and repetitive strain injury -- those kinds of things. There is a huge incidence of that, at a huge cost to the system. Those are the kinds of conditions -- generically, at least -- that we're trying to address here.

B. Penner: I think we can all agree that the example the minister gave is an improper requirement to place on a worker who is not physically capable of lifting a person of that weight. What I'm concerned about, though, are those types of positions that, by their nature, are inherently risky jobs. The legislation that is before us today doesn't recognize that. I don't think it has the flexibility that's required to fit the kinds of situations that arise on a daily or weekly basis in British Columbia.

The interim report from the royal commission working on the Workers Compensation Board suggested that more flexibility was needed, and it specifically recommended that an exception be made for police officers, firefighters, correctional officers and health care workers in those situations where they are required to perform their duties as a normal condition of their employment.

Last week, the minister will recall, I made some suggestions that perhaps the legislation be worded in such a way as to allow a worker and an employer to define the types of risks that would be acceptable in the normal course of employment. The minister says, after consideration and legal advice, that he has decided not to allow that. But I think that type of approach is what the interim report from the Royal Commission on Workers Compensation was getting at: identifying what the normal conditions of employment are and what the acceptable level of risk is for any particular job.

We can think of a situation of a house on fire and a firefighter arriving at the scene and saying: "I'm not going to go and tackle that fire, because it could be risky." Well, he or she is right . . . . There is a risk inherently associated with certain types of jobs.

The way the amendment is worded, by deleting subsection (

b) and the provision about the inherent risk in a type of work presented to an employee, means that any worker at any time has the right to refuse any work, except where the health or safety of another person is in danger. But there are some jobs where clearly the employee signs on knowing that it is a risky job, and presumably rates of pay will reflect that.

Today we're presented with an amendment that says that even if the employee is hired on that basis and accepts that risk at the date of hiring, at any other time or whenever the occasion arises, the employee can say: "Sorry, not today or not right at this moment. I don't feel safe doing that." I think this creates a situation of uncertainty not just for employers but for the public in British Columbia that depend on our emergency workers to come to our assistance in a time of need and defend not just lives but property as well.

I note with interest that Ontario has an exception allowing workers to refuse work except where it is a risk that's normally associated with that type of employment. I believe the Yukon territory, as well, has legislation that is similar, allowing workers to refuse work where they think it's unsafe, unless it's an inherent risk associated with that type of employment. I'd just ask the minister why he feels that this type of an approach would not work in British Columbia and why he does not consider that appropriate here in our legislation.

Hon. D. Lovick: Mr. Chairman, I believe I have answered that question three or four times now. But let me, if I may, just make two points. Number one, under the current law of the land, the worker has the duty to refuse. That's the current law. So it isn't the case that we're suddenly grafting on or demanding of workers a whole bunch more in their obligations; we're not. Second, I would refer the member to what the whole clause says.

It's impossible to understand this amendment unless we put it in the context of the enabling clauses -- namely, that "a worker may refuse to carry out work if the worker has reasonable grounds for believing that the work is unsafe." And then it defines those reasonable grounds and says that the work is unsafe if there are reasonable grounds to believe so and "if the work activities, or the conditions of work, or the conditions that would result if the work were done are such that there . . . would be a significant risk that the worker or another person might be killed, seriously injured or suffer serious illness."

That's pretty clear. I don't think it's safe or fair to say that any police officer or any firefighter or any logger would suddenly say: "Oh, I am now" -- because it doesn't specifically exclude the clause we're talking about deleting here -- "in a position where I no longer do the job of a logger or a firefighter or a police officer." The reality is that no logger can set up and say: "Gosh, my chainsaw is sharp, and I could get in trouble once I crank it up and make it go, and therefore I won't work at that job." Nobody is suggesting anything like that.

[ Page 8192 ]

Rather, it is that something different, something unusual, something especially problematic might occur and then -- and only then -- those individuals as much as you or I standing in this Legislature, or any worker in any workplace, should have the right to say: "No. In this instance -- despite the fact my work is dangerous as a matter of course -- it is unusually so; it is different; it is significantly more serious. The risk is more serious now, and therefore I ought to have the right to refuse." I think we owe that to police, to firefighters and indeed to all workers.

I don't think there is a problem. I don't think it's an overlay. It's simply a statement that we are going to do what we can to grow that culture of prevention and to encourage workers not to do things that, in their best judgment, they know are dangerous to their health and their safety.

B. Penner: I'm not going to belabour this point. I anticipate that this will be my last remark, subject to what the minister says. I agree with the minister that, by and large, people do exercise common sense when they're working on a day-to-day basis.

I don't see why, though, the legislation couldn't reflect that common sense by amending, for example,

section 15, subsection 141(2) -- where it enumerates a number of conditions that amount to an unsafe working environment -- to state: " . . . where there is a significant risk that the worker or another person might be killed, seriously injured or suffer serious illness that exceeds the normal or anticipated risks for work of that nature."

At any time, you could argue that a firefighter, for example, fighting forest fires in the summer has a significant risk that they could end up losing their life. I recall working as a park ranger. That summer, I attempted for the first time to purchase life insurance. The life insurance company said no; park ranger was considered too hazardous an occupation to qualify for life insurance. So I suppose, based on that type of evidence, you could say that it's the type of job where a person could reasonably anticipate that there is a risk of losing their life.

Does that mean that when my boss called me at 7:30 in the morning to show up for work, I could say: "No, today I feel it's just too risky for me to show up for work"? Now, obviously, common sense would say I wouldn't do that, and I didn't.

However, why not simply add a couple of words to the subsection to allow the legislation to reflect that common sense and give all of us, I think, a bit more certainty about how this legislation will work in practice?

Amendment approved.

section 15,

section 141 as amended.

C. Hansen: When we had this debate on Wednesday, and the minister expressed a willingness to reconsider aspects of this section, some of the feedback that I got over the weekend was that it was in need of some change, but not the area that the minister moved his amendment on. The area that we actually zeroed in on and that may warrant a second look was not in fact sub-subsection 141(3)(

b) but sub-subsection 141(3)(a), which the minister has not touched in his amendment and which now reads, as amended: " . . . the right to refuse under subsection (1) does not apply if (

a) the refusal would directly endanger the health or safety of another person . . . . "

Now, as I understand it, in most industries where there is risk involved, there is a clearly defined understanding as to who has the responsibility of determining whether there is risk or not. The one example that comes to mind immediately -- but I know is not covered under this legislation, because it's exempted -- is mine rescue. But I assume it also applies in the case of firefighters. I'm sure it would apply in the case of police officers. It would probably apply in the case of crane operators, for example.

There are probably dozens and dozens of professions that could find themselves in situations where there is an accident, and a threat to the safety of an individual. Yet the rescuers themselves have to make a very careful judgment call as to whether or not going into that situation is going to put them at risk as well. So you wind up in the case of a police officer who has a colleague in difficulty, and who has to make that judgment call as to whether he should rush in there to assist his colleague or whether rushing in there would in fact result in two fatalities instead of one fatality.

So the clause that, it was suggested to me, needed a second look was in fact sub-subsection 141(3)(a) -- whether or not we have to respect the understandings that are there with certain professions when it comes to making the decision whether or not they rush into a situation where another colleague is at risk or hold back until the situation can be stabilized, even though that in itself could in fact cause further harm to the individual who was in that situation. I am just wondering if the minister could tell the House whether or not he's looked at that

section from that perspective.

Hon. D. Lovick: Yes, we did so. Indeed I referred to that in my comments about the amendment -- why we looked at that and why we rejected it.

C. Hansen: I'm not sure that the minister addressed that in . . . . Perhaps I missed it. But I don't recall him explaining how that worker in that situation is protected from a requirement to rush in and rescue a colleague, when the rescue itself inherently presents an unreasonable danger.

[3:15]

Hon. D. Lovick: The member's question seems to have to do with people whose job effectively is to go in and do rescue and those sorts of things -- as he says, for example, a mine rescue team or certain firefighters and so forth. I think the short answer to the question is (

a) common sense, but more specifically, (

b) remembering that those individuals are given the training, the background, the educational programs and indeed the physical fitness kind of regimen and so forth to make them capable of doing things that others of us would regard as absolutely hazardous and simply undoable. People like that, however, with that kind of training, are perhaps able to do things that most of us would never dream of attempting. Therefore I suspect that in their case, even if one doesn't say it anywhere, it would be a higher standard of professional conduct or something that they would see as part and parcel of their work -- that they had indeed to carry out these kinds of duties.

But again I want to emphasize the principle behind all of this -- namely, that whatever the nature of one's work, there ought to be a residual power left in the hands of the worker to say: "I will not die for you. I will not go and lose my arms and legs for the nature of the work." We should not ask that of anybody. That's the purpose of this section, in effect.

C. Hansen: I agree with the minister in that sentiment. But that's not what this legislation says, because it quite clearly says that the right to refuse unsafe work does not apply in the case where "the refusal would directly endanger

[ Page 8193 ]

the health and safety of another person." So it's fine to talk about common sense and about what a person would do in that circumstance. You know, quite frankly, if I was in that situation where a colleague or a fellow worker was in danger, I couldn't really give two hoots about what's in the Workers Compensation Act. I would do what my instincts tell me would be the logical thing to do.

But what's in this legislation is the exact opposite from what the minister just said was common sense. Common sense has not been incorporated here. Common sense would say that the workers can make those kinds of judgments as to what is or is not an unreasonable situation to put themselves into. But what this legislation says is that they don't have the right to refuse unsafe work if "the refusal would directly endanger the health or safety of another person." You know, the minister could talk about common sense, but

interpretation of the law comes down to the words, not what the minister defines as common sense.

Hon. D. Lovick: I'm sorry if I've been obtuse here, but is the member actually suggesting to me that he thinks we don't need subsection (3)(a)? Is he suggesting that we might be better off if we simply remove that provision as well?

C. Hansen: What I'm suggesting is that the wording in this

section does not achieve what I think the

section was designed to achieve. I think that became obvious when we started looking at this on Wednesday. Perhaps an alternative wording would achieve the objectives. Certainly I'm not suggesting that we simply delete it; I'm just suggesting that we may need a whole new approach to this

section which is simply not here today.

I'm not sure whether the minister is prepared at this point to take a longer look at that. I would certainly be prepared to stand this

section down and come back to it after we've finished the entire legislation, in hopes that we can come up with language that would reword this. I have great respect for the legislative draftspersons that we have working for the provincial government. I occasionally can make the odd suggestion as to how we can amend a particular section. I don't pretend to have the expertise necessary to reword this section, but I think that's what is required: taking a different approach to tighten up this language so that it does achieve what it was set out to achieve.

I would certainly be prepared to support standing this down so that that longer look could be taken at this section, with some proper consultation with different industry groups that may be affected by it.

Hon. U. Dosanjh: Hon. Chair, I ask leave to make an introduction.

Leave granted.

Hon. U. Dosanjh: I have the pleasure of introducing 18 grade 6 students from Khalsa elementary school in my constituency. They are in the gallery, accompanied by the principal, Mr. Amar Singh Dhaliwal, and teacher Mr. Juthe. Would the House please make them welcome. They're wonderful kids.

Hon. D. Lovick: Mr. Chairman, I do not share the member's view that this

section is flawed. Indeed, this kind of language, this kind of provision, can be found in a number of comparable statutes in other jurisdictions, and it seems to me that the bill is perfectly workable as is. Therefore I would not advocate standing it down at this point; I think we can proceed.

C. Hansen: Let me zero in on another section, where it talks about "reasonable grounds." Does the minister feel today that there is enough written material . . . ? Is there an understanding on the part of the employer-employee community as to what constitutes reasonable grounds? Or is this something that we're going to see some direction coming out of the WCB on? Or is "reasonable grounds" going to be something that evolves over a number of years so that there is a body of findings that eventually becomes a definition as to what is or is not reasonable grounds?

Hon. D. Lovick: The short answer is that if the employer and the worker can't come to terms on what constitutes an unsafe workplace, then at that point the board has jurisdiction to make a decision on what does or does not constitute reasonable grounds.

C. Hansen: But that's after the fact. That's the point at which work has been refused and an investigating officer has to come in to determine whether or not it was unreasonable. What I'm asking is whether or not there is any material out there today that would give direction as to what are or are not reasonable grounds. Or do we just have to wait for the complaints to be filed and for investigators to go in before there can be any kinds of guidelines?

My other question in the same vein is: what kinds of guidelines are there for the investigating officers? I would expect, with an investigating officer from the WCB going in to look at a situation as to whether or not the refusal was justified, that there would be enormous pressure on that officer to find in favour of the worker -- and that the officer would be under certain pressure, given all of the other responsibilities that an officer has . . . . Because of the consequences of an unreasonable refusal, the inclination would be to find in favour of a justified refusal.

My question to the minister is: what guidelines are there, first of all, for workers and employers to determine whether or not there are reasonable grounds? Secondly, what guidelines are there for the investigating officers to make those kinds of determinations?

Hon. D. Lovick: Two points. First, on the specifics, the answer would be training, knowledge, experience, health and safety committee activities, and whatever literature might be around -- in a word, common sense.

The second point is to say that I reject categorically and peremptorily the notion that an inspector, somebody looking into a case such as this, would be predisposed to find in favour of the worker. I think that is simply not the case.

C. Hansen: In a case where there is a lack of guidelines for the investigating officers to work from, if you look at the penalty ramifications, my sense is that an officer, in the absence of guidelines, would be called upon to make these very subjective determinations. The minister may want to comment on that point.

Let me also throw this out. He also mentioned that the definition of "reasonable grounds" is something that would come through the training and experience of the health and safety committees. Does the minister envision that the WCB will be offering specific courses to health and safety committee members to determine what are or are not reasonable grounds for the refusal of unsafe work?

Hon. D. Lovick: First, I would point out that the member seems to be finding these potential problems in areas where,

[ Page 8194 ]

quite frankly, we have not had significant problems in the past. This has not been a big issue.

The WCB has had huge experience for a very long time in dealing with these matters, so it isn't the case that we're reinventing the proverbial wheel; far from it.

Third, I just make the point, in anecdotal evidence, that if the member or I were working in a pulp mill, and you're a welder or a pipefitter or a millwright or whatever it may be, and you went down under the shaft and suddenly smelled something awful, like gas or chlorine gas or something, then what you're going to do is get out of there PDQ. You're going to say: "Wait a minute. You'd better ventilate that area if you want me in there." I would suggest that even if it is proven later that the gas is not noxious, is not dangerous, that would constitute reasonable grounds.

Therefore I invite once again the example of common sense, which I believe will in fact be the defining feature of much of what actually happens when this legislation is in place, just as it is now in place, when the regulations are active and being used.

C. Hansen: Does the minister envision that this section, reasonable grounds for refusing unsafe work, would become the subject of a training program offered by or with the approval of the WCB?

Hon. D. Lovick: I have no idea, Mr. Chairman.

Section 15,

section 141 as amended approved.

Section 15, sections 142 to 144 inclusive approved.

section 15,

section 145.

C. Hansen: I want to ask the minister about a situation. Here we're talking about investigations and determinations that would be done by WCB officers. I would like to ask the minister specifically about a worksite where there is a collective agreement in place. Under most collective agreements, disciplinary action could in fact become a subject that would be grieved under a collective agreement. I would like to ask the minister what authority the report of the investigating officer would carry when it comes to a grievance that might be filed as a result of disciplinary action taken for refusing unsafe work on unreasonable grounds.

Hon. D. Lovick: I'm sorry, Mr. Chairman, I was conferring with staff because I think I missed the point of the question. If I understand correctly, the member's asking whether a union could come back and effectively grieve the decision of the Workers Compensation Board. I think the answer to that is no, the board's decision stands. What the union could conceivably grieve would be the disciplinary action taken -- namely, whether it was too severe for the incident or something like that. I hope I got the member's question right.

[3:30]

C. Hansen: I would like to ask the minister specifically about subsection (5), which states that if an investigation under this

section determines that the worker did not have reasonable grounds for believing that the work was unsafe, disciplinary action by the employer in relation to the matter may not be the subject of a complaint under division 6. I specifically raised the issue in the technical briefing that the officials from the ministry offered us prior to this debate. We raised the question about what may -- depending on how you read this -- be a conflict between the ability of an employer to include a financial penalty as part of the disciplinary action . . . .

If you read it one way, it would indicate that the employer can take all kinds of disciplinary action, except for a financial penalty in terms of deducting wages. The officials from the ministry very kindly gave me a response to that to clarify it, but I thought that for the benefit of the public record, the explanation from the minister as to which takes precedence over which should be in Hansard as well.

Hon. D. Lovick: Just to clarify for the record, do I understand that is the first "A" of the Q's and A's that were given to the member? If so, I can simply read that into the record. That might be the easiest way.

C. Hansen: Yes.

D. Symons: If I might relate a situation similar to what's covered theoretically in

section 145(5), maybe you can explain what would happen according to this amendment and the act . . . . It involves the fast ferry program. Workers for a number of months -- going back five or six months, I would say -- have been complaining of ozone levels and the effect upon their health of ozone. The WCB attended to this and listened to the workers' complaints and assured everybody that everything was fine, that there was no problem there. I spoke to the WCB worker personally on this matter, and they were ignoring facts in determining that it wasn't a problem.

I gather now that because workers are off with permanently diminished lung capacities, they're discovering that the workers may have been right all of that time. According to subsection (5), the WCB would determine that the workers did not have reasonable grounds for believing the work was unsafe -- it was determined months ago that this was their position. It now turns out that maybe the WCB was wrong in that situation. When workers come under the WCB, they give up their right to sue, I believe. What are the workers' rights in that circumstance?

Hon. D. Lovick: Mr. Chairman, with all due deference -- and I don't mean for a moment to belittle the question, because it is an important one -- this doesn't really have to do with occupational health and safety legislation. Rather, it would seem to have everything to do with the fact that workers have a particular concern or grievance with the board, and therefore avenues are available. I don't think I can contribute anything to that particular issue by talking about the legislation that we're talking about passing.

C. Hansen: I want to talk for a moment about a more general issue as it pertains to this section, and that's the whole

[ Page 8195 ]

issue as to where the line is drawn between the WCB's responsibility and the LRB's responsibility. It occurs to me that in this section, where we have an investigation being done to determine whether or not there are unreasonable grounds for a worker to refuse unsafe work, that is where we start at least getting close to the line, if not stepping over it into an area of responsibility that, in principle, should be the jurisdiction of the Labour Relations Board. I appreciate that the board has in the past taken a role in terms of determining what are or are not reasonable grounds.

I'm wondering if the minister can explain to us why he sees that this is a responsibility of the WCB rather than the Labour Relations Board. Can he explain to us, in this context, where the responsibilities of these two boards lie? Where does the responsibility of the WCB end and that of the LRB begin?

Hon. D. Lovick: First of all, the royal commission said that this issue should not go to the LRB, that it belonged to the Workers Compensation Board. Secondly, the Labour Relations Board doesn't have any qualification whatsoever to determine whether something is safe or not safe. And finally, the LRB -- remember, by definition it deals with unionized workforces -- would leave out huge numbers of workers who might want to avail themselves of the provisions of occupational health and safety legislation.

Section 15,

section 145 approved.

section 15,

section 146.

C. Hansen: I want the minister to explain what is meant by

section 1(a): " . . . the employer may temporarily reassign the worker to reasonable alternative work." Certainly that is quite open-ended, but in different worksites it could have some very different meanings. For example, on a construction site where an electrician refuses to do something that he or she deems to be unsafe, is it reasonable for the contractor, the employer, to assign that employee to do some other work while there's a determination made or while the hazardous situation is being corrected? Could the employer ask the electrical crew, for example, to at least do some cleanup duty for the afternoon or something along those lines? Could the minister elaborate on this?

Hon. D. Lovick: Yes, subject again to common sense, that great category I've referred to many times. Second, as long as there isn't a jurisdictional problem built in. For example, if it's a construction site with unionized labour and a unionized contractor, you can't tell an electrician to suddenly become a carpenter for two hours. That's the second condition. And the other and most important condition is, essentially: as long as the alternative is not punitive in nature.

In other words, if you're dealing with a highly skilled electrician who is in this circumstance, and you say to that individual, "While this is being adjudicated, your alternative work for the next week is to go around cleaning toilets in every job site within a 20-mile radius," I think that would probably be perceived to be punitive by most people's calculus. So that's what we're talking about essentially: a reasonable alternative -- again, defined, above all, by common sense.

C. Hansen: Is the minister saying that the jurisdictional assignment plan that is used by some of the building trades unions -- which is not recognized in any statute that has ever been passed by this chamber -- would take precedence over this clause that is in the legislation that's before us?

Hon. D. Lovick: The principle here is simply the collective agreement. If there is a collective agreement in place with the jurisdictional assignment plan in place, then you couldn't use this statute to effectively violate the collective agreement. That's the answer.

C. Hansen: Certainly there will be situations where there is lots of work to be done in a particular workplace, but there is none that would fit into the very narrow job descriptions of the individuals who are refusing work. In effect, is the minister saying that it has to be within that worker's normal duties -- which seems not to be the intent? The intent seems to be that if there's alternative work, the employer can in fact assign the worker to that alternative work.

Again, if we wind up with very narrow job descriptions which take place not just in construction -- the example I used earlier -- but also in health care, for example, where you wind up with workers who, unless they're performing their specific function, are not able to perform any other work on that job site. I'm wondering if the minister could explain what would happen in that situation, where there is no alternative work that fits into that very narrow definition.

Hon. D. Lovick: I'm going to repeat something that I said earlier -- namely, that I think the member is finding potential problems in areas where we have not had problems in the past. One would dearly hope that a problem such as the one he introduces -- the hypothesis he introduces -- could be solved within a day. As well, I don't think there are too many worksites where one couldn't find something for that individual to do without worry or fear that you would be getting into trouble with jurisdictional disputes.

Section 15,

section 146 approved.

section 15,

section 147.

C. Hansen: I want to pull out a clause from 147 and relate it to words in 148 as well. What we have in 147 is a provision that says that the worker who has exercised the right to refuse unsafe work must basically continue to be paid his regular wages until the circumstances of

section 141 are met -- in other words, until such time as the unsafe situation is resolved.

Looking down the page a little bit to where it talks about other workers who are affected by that action, it says there that they must continue to be paid "until work resumes, or until the end of their scheduled work period." It appears to me, in reading those two sections, that the actual worker who has refused the unsafe work has a much more powerful clause in terms of being paid his regular pay than those other workers who are affected by it. Clearly, you wind up with a situation where the unsafe situation could take much longer to resolve than purely a resumption of work . . . .

I'd like the minister to explain why, in these two sections, we have a very different approach, depending on whether it's the complainant or another worker that has been affected by that complaint being filed.

Hon. D. Lovick: I'm not sure I know how to answer this.

Section 147 deals with the effect of workers exercising their rights and insisting on investigation. It says: "If a worker who is exercising the right to refuse unsafe work has not been reassigned . . . the employer must, until the circumstances" of the unsafe conditions "are met, pay the worker the same wages as would have been payable had the worker continued to work." That's all we're dealing with right now. I can't quite make the connection in terms of another

section that is coming

[ Page 8196 ]

on the next page, to satisfy the member's question. Is he trying to say that if we pass 147, does that mean that 148 will be unfair? I'm missing the linkage here, somehow. Is the member's point that those who are affected by the worker's right to refuse unsafe work . . . ? Again, I'll give him another chance, because I'm missing his point, I'm afraid.

C. Hansen: Perhaps I wasn't clear enough. The point that I'm making is that under 147, we have the treatment of the complainant being worded one way. We've got a situation where the complainant is basically entitled to the same wages as he would have received otherwise, and he's entitled to receive those wages until the unsafe situation has been resolved. The exact wording is: "The employer must, until the circumstances of

section 141(4)(

a) or (

b) are met, pay the worker the same wages as would have been payable had the worker continued to work." Under 148 the language is quite different, and 148 affects workers who didn't file the complaint but who are denied the ability to work because of the fact that the complaint was filed. There the wording is different, and it says: "If workers are unable to proceed with their assigned work because of another worker's refusal under

section 141, unless otherwise provided in a collective agreement, the workers are deemed, for the purpose of calculating wages, to be at work until work resumes or until the end of their scheduled work period, whichever period is shorter." What it appears to me, in reading these two sections, is that the complainant has much stronger language to ensure a continuation of his or her wages than do the other workers who are affected by that action.

[3:45]

Hon. D. Lovick: Mr. Chairman, my apologies to the member and to you for the delay in answering that question.

A couple of points. First of all, when it's the individual worker, it is the individual who is directly affected. That's the individual whose health and safety are most at risk. Second, the purpose of 147 . . . . The wording is: "If a worker who is exercising the right to refuse unsafe work has not been reassigned . . . . " The intention there is to ensure that that individual is not penalized, if you like, for blowing the whistle, for saying that this is an unsafe workplace.

Third, it is obviously easier -- and here is the answer to the question about the individual versus the other workers on the worksite that we have referred to in 148 -- to reassign one person than it is to reassign a whole crew. Therefore we think it's probably being more responsive, if you will, to the reality of the workplace and to the employer's circumstances.

C. Hansen: I want to refer to sub (3), where they're talking about the time spent by a worker to accompany the employer or supervisor while this is being investigated. Here again we have an obligation that has been placed on the employer to "pay the worker for that time." The implication is that there is nothing to restrict it as to regular time or overtime. I know that there is a concern that this may, in fact, force employers to pay overtime in these situations. I'm wondering if that is what is contemplated by this legislation.

Hon. D. Lovick: A couple of points. First, I've answered this question, I believe, in other contexts and other circumstances and said that management still has the right to manage, and the Employment Standards Act still applies. Clearly no employer who has any option is going to suggest that we deal with these matters in overtime, when they would have to pay more than they would otherwise. Finally, I would just refer the member opposite to a

section that we already passed a few minutes ago that addresses this a little bit -- namely, under

section 142(2): "Until any investigation under this

Part is completed, the worker must remain available at the workplace during his or her normal working hours." I think that addresses or at least anticipates that problem.

Section 15,

section 147 approved.

section 15,

section 148.

C. Hansen: Under

section 148(3), there is language used in the context of workers affected by a refusal that is different than what is used in

section 146, which is the worker who actually files the complaint or refuses to do unsafe work. In

section 146, we have a clause that says that the worker must accept the reassignment until he or she returns to work in accordance with

section 141(4). Under

section 148(3), it says, "An employer may assign reasonable alternative work to workers to whom subsection (1) or (2) applies," but it doesn't include the same provision as we have in

section 146, which is the obligation to accept reassignment. I'm wondering if the minister could explain why we have it in one

section but not in the other.

Hon. D. Lovick: The short answer is that if they don't accept reassignment, then they don't get paid.

C. Hansen: Sorry, but it seems to me, I guess, that either it begs the question as to why it was important to write it in the first section, and if it was important in that section, then why . . . ? It's notable by its absence, I guess is the way to put it. Could the minister comment?

Hon. D. Lovick: The point I made a few minutes ago was that the purpose of

section 146, or at least that subsection of it, was simply to ensure that layoffs weren't used in some kind of punitive way -- that one wasn't punished, in effect, for a refusal to perform unsafe work. That was the purpose of that other section.

Section 15, sections 148 and 149 approved.

section 15,

section 150.

C. Hansen: This is a new division: division 6. We're making some progress here.

Under

section 150, this is . . . . I guess this whole division is what is commonly called the whistle-blower section. In

section 150(1), it says: "For the purposes of this Division, 'discriminatory action' includes any act or omission by an employer or union, or a person acting on behalf of an employer or union, that adversely affects a worker with respect to any term or condition of employment, or of membership in a union." I'm wondering if the minister could explain why the last six words are in that particular clause -- that is, the words "or of membership in a union." Why is it considered important to have that in this particular clause?

Hon. D. Lovick: If somebody is working in a closed shop and one's union membership is revoked, that person would effectively be prevented from working.

C. Hansen: A few minutes ago I raised the area where the responsibilities of the WCB and the LRB may in fact cross

[ Page 8197 ]

over. Certainly, when we start talking about who is or is not entitled to be a member of a union, that strikes me as very clearly falling within the purview of the Labour Relations Board. I would like to ask the minister why these provisions are included under a WCB act rather than becoming part of the responsibilities of the Labour Relations Board.

Hon. D. Lovick: I have a couple of points. First of all, the intention of the

section is to prevent this kind of thing from happening. So they can indeed fight the matter out at the board of the WCB, and it doesn't become a jurisdictional battle or something like that. Second, this entire

section is indeed entirely consistent with the recommendations of the royal commission. Nobody's trying to sneak in an LRB adjustment here or something like that.

C. Hansen: I think what is important is that we define where responsibilities lie. Where do the responsibilities of the WCB end and those of the Labour Relations Board start? Certainly, when you start getting into clauses like this, you're building some pretty big grey areas in here. My concern is that the more the WCB starts to intrude upon an area of jurisdiction which is rightfully under the LRB, then we're going to wind up with problems down the road, especially when you get two bodies that have such extreme powers. There are very big powers conferred on the LRB and on the WCB.

If they start crossing over in terms of jurisdictions, then we could have a major problem on our hands. So what I'm trying to determine in terms of a statement of principle is where that line is drawn between the responsibilities of the two boards.

Hon. D. Lovick: The discriminatory action contemplated here has entirely and only to do with occupational health and safety. The fact that it refers to some persons "on behalf of an employer or union" or membership in a union simply responds to the reality that certain workplaces are union shops -- okay? They are closed shops; there's nobody else in there. What one wants to ensure is simply that nobody is punished, if you like, for his or her activity regarding an unsafe workplace and for reporting thereon, in a way that will affect either their employment -- as the employer is empowered to do so -- or their ability to work, as affected by their membership in a union.

The LRB has nothing to say on this subject; the Labour Code has nothing to say on this subject. This is about discriminatory action arising from occupational health and safety matters. It seems to me that the line is absolutely clear. There isn't any mixing of jurisdictions.

C. Hansen: I want to zero in on one word that's in here, and that's the word "omission," where it says that discriminatory action can include "any act or omission by an employer or union . . . . " I am concerned in the context of having that in here when you also . . . . If you go to

section 152, we have this very bizarre clause that basically says the employer or the union is guilty until proven innocent. So on one hand that in itself is a very onerous clause -- which we'll get to in a few minutes, obviously, when we get to

section 152.

But if you come back to

section 150 and start looking at not just an action by an employer or union but an omission of an action by an employer or union that could give rise to a complaint under this section, for which the onus is not on the complainant to prove the case . . . . The onus is on the employer or the union, depending on who the complaint is being levelled against, to prove that they're innocent. When you start including omissions in this clause, is that not carrying this too far? When it comes to the ability to file complaints based on the lack of an action or on an omission, that then puts the onus on the employer to prove themselves innocent after the fact.

Hon. D. Lovick: The short answer would be no, I disagree. But I'll give the member a longer answer. I don't know whether the member opposite was trained by the Jesuits or anything like that -- you know, their zeal for detail, zeroing in and asking the precise questions. The only reason I make that point is simply because I think . . . .

Interjection.

Hon. D. Lovick: Listen, members. If you are perplexed, let me explain my allusion. The reference is essentially to the fact that it was the Jesuits -- remember? -- who taught us about sins of omission as well as of commission. So I think we're on pretty safe ground -- okay?

I'll give you an example of a sin of omission as it happens here: failure to confirm an appointment after six months on probation. In other words, an individual was doing the job reasonably well but got into a circumstance of reporting an unsafe work environment. It wasn't a case of something that the employer did or didn't commit. Rather, they didn't carry out what was anticipated would happen -- in other words, not commission but omission. There's an example of what is intended by "omission" in this particular

section of the bill.

C. Hansen: I won't pretend to have anywhere near the scholarly background that the minister has, so I won't try to take him on when it comes to the Jesuit principles.

Here my concern is that there is an opportunity for complaints to be filed based on discriminatory actions. Obviously the discriminatory actions can include a whole list of things that are set out in this particular division. If you've got an action committed by an employer, it is bad enough that they are guilty until proven innocent -- I think that's an unreasonable clause, but we'll get to that one -- but it's especially unreasonable when you read it in the context of not just an action that has been taken by an employer or a trade union, but in fact an omission. That's where I think this particular

section deserves some reconsideration. I think that extends it too far. You can talk about the Jesuit principles, but I think it still comes back to the fact that this is a vehicle that is really putting an enormous cost burden on the employer -- or on the union, if the complaint is against the union.

I'm wondering if the minister knows any history of the kinds of complaints or the volume of complaints that could come forward under this kind of language. Perhaps the minister can explain where this language comes from. If it is from another jurisdiction, is there in fact a history to show the reasonableness of it?

[4:00]

Hon. D. Lovick: I'm advised that there are very few refusals to perform work in the normal course of events and therefore relatively few instances of discriminatory action. To answer the broader question from the member, however, I would agree that frivolous complaints are indeed possible. Of course they are. But so are coercive, arbitrary and capricious actions by employers. I would like to believe that common sense is the norm in the workplace for the most part and that we don't have to deal with either of those extremes.

Section 15, sections 150 and 151 approved.

[ Page 8198 ]

section 15,

section 152.

C. Hansen: This is the

section that I have a great deal of difficulty with. Subsection (3) says: "In dealing with a matter referred to in subsection (1), whether under a collective agreement or by complaint to the board, the burden of proving that there has been no such contravention is on the employer or the union, as applicable." In other words, the complaint is filed against the employer or a complaint is filed against the union, and the burden of proof comes back onto the employer or, as the case may be, the union.

I would like to ask the minister if there is any other similar provision of guilty until proven innocent that he is aware of in terms of any of the other labour legislation that we have in this province.

Hon. D. Lovick: I'm not sure I want to cast this

section as "guilty until proven innocent." I think that sounds just a little more draconian and scary than it might otherwise be. I would remind the member opposite that the reverse-onus provision is indeed consistent with the royal commission recommendation, and that was done largely because of the recognition of a power imbalance between workers and employers. That's the reason for this.

C. Hansen: Certainly I can understand why there would be a provision that says that the employer or, in the case of a complaint against a union, the union . . . . I can understand why those organizations have to cooperate, why they have to assist in terms of records or other things that may be necessary. What I don't understand is why the burden of proof is put on the employer rather than allowing the complainant to come forward with information and then perhaps take the approach of giving the complainant the right of assistance or cooperation when it comes to what's necessary to put a complaint forward.

But to put the total burden of proof on the employer . . . . It seems to me that this is open to abuse from which the employer really has very little defence, other than to go through the motions and add the costs of trying to prove innocence in this case.

The minister says that to categorize it as "guilty until proven innocent" is too strong, but that's certainly how I read this. The onus is clearly on the employer to prove their innocence.

Hon. D. Lovick: I wonder if the member accepts the reverse of the proposition -- namely, that the worker is guilty until proven innocent. But that's neither here nor there. I think the point to be made -- and we're in danger of losing the point -- is that the context of this is that an employee says: "For carrying out my responsibilities under this legislation and these regulations, I didn't get paid. And so I, the worker, start the process of complaint by saying so." Who except the employer can determine whether in fact the member got paid or did not get paid?

The employee can stand up and scream until his or her face turns blue or whatever, but the reality is that the only person physically empowered to deal with the question is the employer. It's no horrible distortion of natural justice; it's simply the reality of a workplace, and the complaint that we're talking about . . . . How do you go about redressing that complaint? That's all.

R. Coleman: I seek leave to make an introduction.

Leave granted.

C. Hansen: The minister was just talking about a discriminatory action being whether somebody was or wasn't paid. That's an area that could fall under this particular clause which is self-evident, I believe. But if you start looking at other discriminatory actions, for example, as provided for under

section 150(2)(d), where it talks about how a discriminatory action includes coercion or intimidation . . . .

I would like the minister to explain this to the House. If an employer is accused of coercion or intimidation, how does he prove that there wasn't coercion or intimidation? You're talking about very subjective determinations that have to be done, yet what we have done under this

section is put the burden of proof onto the employer. And I'll read it again: " . . . the burden of proving that there has been no such contravention is on the employer . . . . "

An Hon. Member: Or the union.

C. Hansen: Or the union. We'll talk about it as an accusation made against an employer or against a union. But here, where there is an allegation of coercion or intimidation, the burden of proving that there was not is placed on the employer. I'd like to ask the minister: how is an employer to prove that there was no coercion or intimidation?

Hon. D. Lovick: Well, I quoted the Jesuits not long ago, so let me quote Plato this time -- namely, that "the truth shall set you free." That's the answer: you tell the truth and the problem is solved. That's how you prove your innocence.

C. Hansen: I wish I were getting some better answers from the minister, but obviously we're not going to make any more progress from here. Quoting Plato is not going to . . . .

Interjection.

C. Hansen: Now, I could quote Play-Doh, but not Plato. Certainly the minister's response to some of my questions has left us with no alternative other than to vote against this particular section. Clearly it's not worded in a way that's going to result in the kind of solutions in the workplace that we think are necessary.

Before we vote on this entire section, let me go on to ask some other questions. This is under subsection (2), where we talk about the rights of a worker to file a complaint, and that must be made in writing to the board, in the case of a complaint referred in subsection (1), within a year of the action considered to be discriminatory. I would like to ask the minister: why has he chosen to include such a long duration for a worker to come forward with a complaint under this section?

Hon. D. Lovick: The short answer to the question is simply that the evidence of discrimination may not be that evident in the immediate present. It may take six months or longer before one finds out that there is some alleged discrimination. For example, one didn't get the promotion, one got a

[ Page 8199 ]

transfer to an inappropriate spot or position or something of that kind. It's just the reality, I guess, of the circumstances.

C. Hansen: But I think that this makes the burden of subsection (3) even worse. What we've got is an employer who doesn't even know that there is a problem, that hasn't even been advised that there is a complaint pending. So a year later, after . . . . Everybody is still trying to remember: "What was it that took place a year ago? What were the circumstances? What was done?"

Let's go back to subsection 150. The coercion and intimidation that may have taken place . . . . You're asking for recollection of what transpired a year ago, and then on top of that you're putting the burden of proof on the employer. So you've got the complainant who basically can sit on their complaint for 364 days, bring the complaint forward and now the burden is not on the complainant to prove that; the burden is on the employer to prove that somehow the complaint was not justified. What is the comparable protection to be given to the employer or to the union against whom certain accusations are being made?

The burden of proof is there, and yet a year can transpire before anything has to come forward.

Hon. D. Lovick: Well, first of all, I think the notion of somebody waiting for 364 days and then saying, "Gotcha! I've got one day left to do it," is highly unlikely. I'm tempted to say preposterous, but I won't because that might be inflammatory. Nobody is going to sit on a complaint. If a complaint is real and significant and sufficient that a worker wishes to take action I'm sure that she or he will do so as soon as the evidence comes before them sufficient to lead them to the conclusion that they ought to take that action.

Further to the matter of coercion or intimidation, which was the example the member opposite used, if I have done anything that will lead somebody else to accuse me of coercion or intimidation -- those are strong things -- I am sure that I will remember the circumstance, either to say, "That is preposterous; that is ludicrous. The circumstance the individual is describing has no resemblance whatsoever to coercion or intimidation," or to say that: "Yes, indeed, that was an extremely unhappy circumstance.

Finally, I would point out that I don't imagine behaviours of the kind listed here, like coercion and intimidation, are one-off activities. I think those are probably more likely a pattern of behaviour and conduct.

I said "finally," but there's one other piece that the members opposite may appreciate knowing. Ontario also places the burden of proof on the employer, I gather, so it isn't as if this is unique or that we alone are doing this thing.

[4:15]

C. Hansen: Well, if the minister thinks that it's totally unreasonable for someone to sit on a complaint for 364 days and then bring it forward, why don't we amend this? Why don't we make it a shorter period of time? Why don't we make it 90 days? Certainly that would be some measure towards addressing some of the problems in this section. The year -- as I think the minister just said -- is unreasonable. It's an unreasonably long length of time. As the minister just said, no worker is going to sit there and hide this away in their bottom drawer for 364 days and then suddenly bring it forward with a complaint.

So why don't we bring it forward so that there is a more realistic time frame in which a complaint can be brought forward? Would the minister be prepared to entertain an amendment to shorten that period from one year, so that he can be consistent with the remarks he just made?

Hon. D. Lovick: No, I don't think I would -- simply because I don't think one is necessary. It seems to me that the year is a reasonable amount of time, for the reasons I enunciated not too many moments ago. It's simply that the evidence of some kind of discrimination may not be obvious for at least six months -- up to even a year. A year is, I think . . . . What will we call it? Intuitively we all know that a year is a reasonable amount of time. That is, I think, probably the short answer.

C. Hansen: But the minister says it may not become apparent for a period of time -- I think the example that he used was the lack of a promotion -- and it may not become evident for a year. But then on top of that you've got an employee who has not received a promotion and who after 12 months is going to come forward with a complaint that says: "I did not get a promotion because 11 months ago I complained about something that I thought was an unsafe work practice." In that context, you're saying that the burden of proof is on the employer; it is the employer who has to prove that the worker was not denied a promotion because of a complaint that took place a year ago. That's the way this

section reads: the employer's responsibility is to prove -- the burden of proof is on the employer -- that the employee was not not promoted because of a complaint that was made a year ago or an action that was taken a year earlier.

How does an employer go about proving that circumstance?

Hon. D. Lovick: I think the answer is that he or she does so in the way one always does -- namely, you demonstrate that the competition was fair and open for something like a promotion. The other matters, which are more likely to be in evidence here, are much easier to define -- in terms of staying on after a probationary period or something of that sort.

Section 15,

section 152 approved on division.

section 15,

section 153.

C. Hansen: It strikes me that this is new territory for the board to move into. In

section 15,

section 153, we have the response to a complaint that comes forward under a discriminatory action.

Section 15,

section 153(1) says: "If the board receives a complaint under

section 152(2), it must immediately inquire into the matter . . . . " Then the rest of the

section basically sets out the way that the board has to go about conducting its investigation. I would like to ask the minister if this is not a significantly new area for the board to be given responsibility for, when it comes to investigations.

Hon. D. Lovick: I thank the member for his question, Mr. Chairman. Yes, it is a new section, and we do indeed recognize that some training may have to be introduced in order to make this

section operate as it should.

C. Hansen: Does the minister envision that this is going to be a different type of officer at the WCB? We now have officers who are investigating safety situations: they are investigating technical risk, they're investigating hazardous chemicals, and they're investigating the safety of equipment. Here we have a very different kind of investigation that lends itself far more to a labour relations officer than to a health and safety officer. I'm wondering if the minister envisions that it will be a different type of officer with a different education that's going to be recruited. Or is it that the existing occupa-

[ Page 8200 ]

tional health and safety inspectors or WCB officers are going to be given some supplemental courses to deal with what I think are very complex issues?

Hon. D. Lovick: It seems to me that we do indeed have a wealth of expertise and experience available to us, and if we are talking about putting together some training for an authentically new position, it seems to me that we need to look no further than, say, the employment standards branch. Those people have that kind of training, and we could certainly look into this -- or do this.

C. Hansen: Does the minister envision that we will be seconding individuals from the employment standards branch? I would add another question to that: is there going to be an expansion in the number of officers that the WCB is going to require, not just for this particular

section but for this part that is being added to the WCB act?

Hon. D. Lovick: As I said a while ago, few refusals and few complaints, in all likelihood. The answer to the two questions is: number one, no, and number two, no as well.

Section 15,

section 153 approved.

Hon. D. Lovick: Mr. Chairman, may I suggest that a brief recess might be appropriate at this point?

The Chair: On agreement by members? We will take a brief recess and be back by 4:30.

The committee recessed from 4:21 p.m. to 4:29 p.m.

[H. Giesbrecht in the chair.]

section 15,

section 154.

Hon. D. Lovick: Mr. Chairman, we had a brief recess after completing division 6, and we're now starting a new division. I'm wondering if I might ask the Chair's indulgence, as well as the cooperation of my colleagues opposite, and suggest a slight deviation from our normal procedure. The other day the member for Okanagan-Vernon raised some questions regarding the impacts of the legislation on the education budget for the province, and I assured her that I would get some answers for her. Given that those matters were raised in the House, I'm wondering if it's appropriate for me to respond here, even though it's a

section that we dealt with some time ago -- namely,

section 134.

[4:30]

Interjection.

Hon. D. Lovick: Before the member opposite says aye to agree, I would suggest, Mr. Chairman, that I give a brief response and then allow my colleagues opposite, if they so wish, to respond to the information that I read into the record, but that that is the end of it. We aren't opening up

section 134 all over again. We have indeed done that. If that's agreeable to the member for Okanagan-Vernon and the debate leader of the opposition, I would be more than happy to read that into the record now.

The Chair: Is the committee agreeable? Please proceed, minister.

Hon. D. Lovick: Thanks, Mr. Chairman. I appreciate that.

First of all, I want to thank the member for Okanagan-Vernon for her questions; I fear I was perhaps a bit precipitate in dismissing them out of hand, and if I did so, I didn't mean to. I guess it was what I thought was, frankly, an exaggeration of the concern, and thus I responded as I did.

Let me begin, then, by responding to her statement by offering a few numbers of ours in the ministry -- numbers that I think will underscore the need for health and safety in schools as much as in any other workplace. In 1997, for example, there were 5,437 claims paid in the school board's subclass. Of these, four were fatal claims. Three were for the deaths of teachers/instructors, and one was for a nurse. There indeed have been 13 fatalities in the school board subclass since 1988. Claims costs in 1997 totalled $13,661,395 for this school board subclass.

Further, in 1997, 74,482 workdays and $9.919 million in wages were lost as a result of claims. Injury rates for short-term disability claims were the equivalent of two person-years or 104 weeks of employment. Claim duration averaged 30 days per claim. Mr. Chairman, I think you would agree with me that these figures are startling. If the member wants to talk about reduction in classroom services, I think that in fairness we must also consider just how classroom services are impacted by the time and the money spent with respect to these claims.

I must also say that my considered opinion is that the statement made by the member was in effect an overreaction and was somewhat extreme when it came to the impact of Bill 14 on education services. Virtually every school district in this province already has a district-level health and safety committee. Additionally, the B.C. Teachers Federation has been working for the past three years to establish school-specific committees, and these committees already exist in many, many schools in British Columbia.

Any school that has 50 employees or more -- teachers, teacher aides, clerical staff, administrators, librarians, nurses, maintenance staff, etc. -- is already required to have a committee in place. No one thus far has stated that this requirement has placed an unfair burden on education budgets. Additionally, most school districts, through their collective agreements, have provisions for paid leave for union business, including occupational health and safety training. This, then, is already happening.

While it may be difficult -- and I'm certainly prepared to acknowledge this -- for some of the smaller schools to put in place one committee for each school, we should also not forget that Bill 14 provides some flexibility. It allows the Workers Compensation Board to authorize variations such as one committee for multiple workplaces of the employer. In smaller school districts it may well be appropriate to consider one committee functioning for several schools.

I'd just like to make a couple of final points on this matter. First, these committees are not just about the health and safety of the staff working in schools. They are also very much about the health and safety of our children attending those schools. They address many issues such as environmental concerns, which will of course have a direct impact on the health and safety of the students in our schools.

Second, the Workers Compensation Board, through its Student Work Safe initiative, is working very hard in the schools to raise awareness of the importance of healthy and safe workplaces and work practices. The injury rate among young workers is frighteningly high -- appallingly high. The presence of a joint committee helps to build safety awareness among the students and also, I think, acts as a valuable learning resource, including reinforcing the messages of the board.

[ Page 8201 ]

I have asked officials in my ministry to work with the Ministry of Education and their officials to ensure that we have a suitably structured system that works for different-sized schools in different districts. As I stated earlier, the bill does contain some flexibility in allowing for one committee for multiple workplaces of the employer.

I hope that information is helpful. Albeit after the fact, I want to thank the member for Okanagan-Vernon for raising the matter and thank the members for allowing me this opportunity to clarify the issue from this ministry's perspective.

A. Sanders: Thank you to the minister for procuring the information and bringing it back to the House. I have just a few questions on that information. Of the four fatalities within the confines of school grounds that were reported in 1997, were these fatalities related to the job, or were they from causes other than job-related risks and so on?

Hon. D. Lovick: Mr. Chairman, just to clarify, if I may, I said very clearly that I would make a statement, that I would welcome a response from the members opposite -- the member for Okanagan-Vernon as well as the debate leader, the member for Vancouver-Quilchena -- but that we're not reopening the section. If the member wants to put those questions on the record, I would be happy to get that information for her, but I will not, at the moment, use committee for that. Okay?

A. Sanders: The reason I asked the question as a start to looking at what the minister has provided in terms of information is that fatalities on the job occur in all sectors. The implication of a fatality on the job from myocardial infarction -- a 60-year-old who happens to drop dead on the job -- is quite different than to assume that for some reason Bill 14 has saved them because we now have this health and safety committee in the schools. I was trying to really ferret out the information as to whether it related at all to the job safety standards. In most places, we would not see schools as a high-hazard work area, equivalent to a mine or a sawmill.

I originally asked these questions for a very good reason. The school districts had written to me in some cases, stating that the implications of the health and safety committee with respect to direct and indirect costs could be quite considerable -- for one small district, upwards of $40,000.

Because this has not been budgeted for in the education coffers, it is certainly my job to make sure that the introduction of Bill 14 is not going to take scarce money needed for the education of our kids out of the actual classroom and be put into the creation of additional bureaucracy that will or will not, depending on who you listen to, have any direct effect on the safety of those individuals working on the premises.

These are the kinds of things I will look into, hon. Chair, with respect to the revenue-neutrality of Bill 14, which the minister has alluded to -- that Bill 14 will not provide additional costs for school boards that are significant. I am certainly pleased to hear that he has been working with the Minister of Education, and I would hope that he would follow up on that to make sure that we can leave it as revenue-neutral as possible, as the schools are already short of needed dollars for classroom education.

Hon. D. Lovick: I thank the member for Okanagan-Vernon for her response, and I will certainly undertake to get her a formal response to those particular points.

For division 7,

section 154, there is on the order paper an amendment in my name, a copy of which we have shared with my colleagues opposite. It points out that this was simply a technical editing error. We're adding the word "reasonably" to ensure consistency within

section 154(3) and with other references in the bill. I would accordingly move that amendment now:

[SECTION 15, in the proposed

section 154 (3) of the Workers Compensation Act, by adding "reasonably" immediately before "practicable".]

Amendment approved.

Section 15,

section 154 as amended approved.

section 15,

section 155.

C. Hansen: Actually, I know that my colleague from Peace River North would like to ask leave for an introduction. I'll put my question to the minister and then allow for that introduction.

Here it says, "An occupational health and safety information

summary for a workplace or workplaces of an employer may be requested by . . . " and then it lists the different bodies that can request that information

summary. I'd like the minister to explain for us what an information

summary is. But I'll leave that question with him and defer to my colleague from Peace River North.

R. Neufeld: I ask leave to make an introduction.

Leave granted.

R. Neufeld: Today in the building I had the pleasure of having approximately 15 grade 6 and 7 students and their teacher, Ms. Muscat, along with several adults, from Chalo School in Fort Nelson. Fort Nelson is the northernmost community in my constituency and also the largest northern community in British Columbia. Would the House please make them welcome to Victoria.

Hon. D. Lovick: It's always so nice to hear the member for Peace River North, who is unaccustomed to making introductions in the House.

Interjection.

Hon. D. Lovick: And when he does, as he says, they count. I think he's quite appropriate to point that out.

section 155, the member's question referred to the types of information in more specific terms -- information that would be included in the

summary. Let me just give him a number of examples, if I might: the number of injuries and fatalities reported to the board, the number of claims, the number of lost workdays in relation to claims, the number of inspections, investigations and inquiries conducted by the board and the number and types of orders made. That is what we're talking about being specific to the employer.

C. Hansen: So basically, this information

summary is a fairly substantial document. There's going to be a significant amount of information contained in this document that will come from the WCB. I'm wondering if the minister could outline for us how much staff time is going to have to be devoted by the WCB to preparing these information summaries as they are requested from various worksites around the province.

[ Page 8202 ]

[4:45]

Hon. D. Lovick: I'm frankly surprised by the question, because normally my colleague opposite is quite insightful. I think he will be a bit embarrassed, because the answer to the question essentially depends entirely on the incidence of workplace accident and injury. If we have a safe workplace where things are operating smoothly, effectively and efficiently, as they ought to be, there will not be many of these things to report. There will not be many injuries or fatalities. Hopefully, there will be none -- and so on down the rest of the list.

I don't think anybody anticipates that as a matter of course, as the norm, there will be this huge burden of regulatory tasks and duties imposed on anybody.

C. Hansen: If the minister is saying that all that's going to be in these information summaries is a listing of the statistics for the previous year for that worksite . . . . The minister is saying that there's no general information, no information pertaining to industry classification or to the type of worksite that might be compiled by the board. Is it just the specific data pertaining to a specific worksite that would be forthcoming? I see the minister nodding, so I'll accept that.

Certainly, if you have in place a newly structured health and safety committee, the first thing that they would do, I assume, is look at what their rights and responsibilities are, and this is one of the areas where a health and safety committee has the power to request information. So certainly the first order of business of a newly constituted health and safety committee would be to make sure that they've got all the pertinent data pertaining to that workplace. Two things. First of all, why wouldn't they just go to the employer to get that information?

They would probably have it more readily accessible than the WCB. Secondly, given that this is information that as a matter of right can be requested from the WCB, why does the minister feel that we wouldn't have all 6,000 newly constituted health and safety committees making this kind of request in order that they have the data at their fingertips to allow them to do their work?

Hon. D. Lovick: If the employer can give them the information, that's certainly acceptable; they can do so. That information is already FOI-able -- at present, in any event.

C. Hansen: I note with interest that this

section puts it that the board must respond. The wording in subsection (2) is: "On receiving a request under subsection (1), the board must prepare a

summary . . . . " I'm wondering why the minister hasn't given the board the capacity or the latitude to deal with frivolous requests that could potentially come in under this section.

Hon. D. Lovick: Well, I'm working on the assumption that there aren't going to be those kinds of frivolous requests. I just point out, though . . . . I must say, I'm accustomed to being able to have a clear sight line to the member for Vancouver-Quilchena. I now have to look through the member for Richmond-Steveston, and that's really tough. But anyway, the point I was going to make is that -- again, this sounds a little bit cheeky -- I suspect that if we had "may" in here, the member would probably be asking me: "Why isn't it 'must'?" I have a hunch that it's that kind of debate.

In this case, we simply accept the proposition that if the complaints -- the concerns -- are indeed serious, then the board ought to respond to those concerns expressed by the clients it serves.

Section 15,

section 155 approved.

section 15,

section 156.

C. Hansen: I want to ask a question pertaining specifically to subsection (3). This gives the power to the board to insist upon certain information being divulged. Then in subsection (2) it basically says that an officer of the WCB must not publish or disclose information. But then we get to subsection (3), and it says that the board may disclose or publish information referred to in that subsection or authorize it to be disclosed or published.

As I understand it, there are situations -- and I understand this has happened in British Columbia -- where the compulsion to give information has in fact hindered the rights of an individual in related prosecutions. Again, I'm not a lawyer, but I'm told that the reference is a court case called B.C. Securities Commission v. Branch. I'm wondering if the minister could comment on the lack of restriction that is being put on the WCB in terms of the disclosure of otherwise confidential information.

Hon. D. Lovick: I am advised that the board must still abide by the rules of FOI -- freedom-of-information -- legislation and that the board will be guided above all by the determination of whether the public interest is to be served. That, I gather, is its ruling principle in this area.

C. Hansen: As I understand it, when the minister says that the board will be governed by that, certainly that's not what we have before us here. In terms of FOI, I don't believe that information would be disclosed that could have a detrimental effect on somebody's right to a fair prosecution under a different piece of legislation; that in itself would not be subject to an FOI request. My reading of the way this

section is worded is that this information cannot be disclosed. My question to the minister is: does that not take precedence over the Freedom of Information Act, unless the board itself discloses it? So if anybody other than the board discloses it, that would be a violation of this act. But under this section, the board may disclose information that has been pulled together by an investigator for the WCB.

Hon. D. Lovick: My apologies to my colleagues, Mr. Chairman. I'm struggling with this. I think I now understand the point being made.

Looking at subsection (2) along with subsection (3) . . . . And we need to see them both, because they obviously have a clear connection: "Except in the performance of his or her duties, (

a) an officer, (

b) a person who accompanies an officer . . . or (

c) a person who conducts a test . . . must not publish or disclose information obtained or made by the officer or other person in connection with his or her duties or powers under this Part." This is to protect the confidentiality of the information; that's obvious so far. The conclusion, however, is that we also need another

section that says: "In the area of the overriding public interest and consistent with the rules of the freedom-of-information legislation . . . . " Public interest, by the way it is defined under the Freedom of Information Act, is that you knee-bend to make this exception. In other words, an overriding public interest is deemed to be in some circumstances sufficient to nullify or otherwise negate the

section I began by reading -- that one is not allowed to publish or disclose information. I hope that clarifies.