1993 Legislative Session: 2nd Session, 35th 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)

THURSDAY, JULY 8, 1993

Afternoon Sitting

Volume 12, Number 1

[ Page 8403 ]

The House met at 2:06 p.m.

E. Barnes: I'd like to welcome Peter Seidl, a former legislative intern who is a researcher with the B.C. portion of Change in the Workplace, a nationwide study looking at changes in labour-management relations and human resource management. I don't see him, but I know he's up there someplace. Please join me in making this constituent of Vancouver-Burrard welcome.

L. Fox: In the gallery this afternoon we have a young lady who works very hard on behalf of the constituents of Prince George-Omineca and representing myself within that constituency, Emmy Hyette. Sitting with her is Claire Vessey, my MLA assistant here in Victoria. Would the House please make them welcome.

H. De Jong: From time to time the question is asked: who is tending the farm? Today I want to introduce some people who have been tending the farm for the last seven years without having the opportunity to come to Victoria. They are Ted and Gretta De Jong, our son and daughter, with their four children: Tyler, Jared, Alexis and Kasi. I ask the House to give them a warm welcome.

D. Mitchell: We have in the gallery today two longtime residents of West Vancouver: Dr. Bill Bie, who practised medicine at the Vancouver General Hospital for the last 50 years; and his wife, Jean. Jean Bie was an assistant to a former Liberal Attorney General in Saskatchewan. They're accompanied by Jean's sister Shirley Caswell from Victoria. Would the members of the House make them welcome here today.

Introduction of Bills

MULTICULTURISM ACT

Hon. A. Hagen presented a message from His Honour the Lieutenant-Governor: a bill intituled Multiculturalism Act.

Hon. A. Hagen: It is my pleasure to introduce the Multiculturalism Act. This bill formally expresses the government's commitment to multiculturalism. It promotes the principles of cross-cultural understanding and positive race relations, and recognizes the inherent right of British Columbians of every race, cultural heritage, religion, ethnicity, ancestry and place of origin to be treated with dignity and respect and to have full access to and free participation in the economic, cultural, social and political life of our province. It reaffirms that violence, hatred and discrimination have no place in our society.

To demonstrate the government's commitment to these principles, the bill proposes that every ministry and Crown corporation submit annual reports to the minister setting out initiatives undertaken to promote the policies set forth in this bill. It also proposes that the government carry on services and programs in a manner that is sensitive and responsive to the multicultural reality of B.C. The bill will formally enshrine the multicultural advisory council in the statute. This council provides invaluable advice to the government on multicultural issues of significance to British Columbians.

Bill 39 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

G. Farrell-Collins: Hon. Speaker, I beg the indulgence of the House and request leave to make one more introduction that was just passed to me.

Leave granted.

G. Farrell-Collins: I would like to introduce Rev. Gill and Rev. Gail Lindsley of Carson City, Nevada, and their son Adam. Would the House please make them welcome.

Oral Questions

MUNICIPAL EMPLOYEES SEEKING MUNICIPAL OFFICE

F. Gingell: My question is for the Minister of Municipal Affairs, who has introduced legislation that allows civic employees to run for political office. In Surrey, CUPE municipal staff have been meeting during working hours, at taxpayers' expense, to discuss their strategy to ensure that their candidates get elected. What is this minister going to do to stop this flagrant misuse of public tax dollars?

The Speaker: The hon. Minister of Municipal Affairs will recognize, as all hon. members will, that we should not be discussing legislation in any detail during question period.

Hon. R. Blencoe: It must be a slow day for the opposition. We have a duly elected council in Surrey. They have a labour relations portfolio in the personnel department and a qualified council to deal with local issues. They have every power in the world to do it as they see fit. We believe in local government; they can deal with it.

F. Gingell: Municipalities are the creation of this province, and provincial tax dollars are used to support municipal governments. The taxpayers of this province demand that action be taken to stop the flagrant misuse and inappropriate expenditure of provincial taxpayers' money. What is the minister going to do about it?

Hon. R. Blencoe: I think I have already covered it. If the member wishes to communicate with the mayor and the council, he can. Maybe he wishes us to intervene in Gordon Campbell's campaign with regard to his use of his public office in his campaign.

[ Page 8404 ]

The Speaker: Final supplemental, hon. member.

F. Gingell: That's the most disgraceful statement I've ever heard. The mayor of Vancouver has already apologized, and this bunch of parrots....

Interjections.

The Speaker: Order, please. The hon. leader will take his seat. This is question period, and I think all hon. members know full well the guidelines for question period.

I will now recognize the next questioner, the Leader of the Third Party.

F. Gingell: Hon. Speaker, am I not being...?

The Speaker: I have recognized the Leader of the Third Party.

ENFORCEMENT OF WILDLIFE ACT

J. Weisgerber: My question is to the Minister of Environment. In light of Justice Govan's ruling on the Donald St. Jean case, what specific steps has the minister taken to ensure that the applicable sections of the Wildlife Act are enforced equally among natives and non-natives alike in British Columbia -- assuming, of course, that the minister has read the judgment?

Hon. J. Cashore: It's my understanding that this case is being considered for appeal. Therefore I will not be commenting.

J. Weisgerber: For the minister's benefit, Judge Govan ruled that the ministry's formal policy of granting general dispensations to natives for violations of the Wildlife Act is discriminatory, illegal and offensive. He further ruled that the Crown may not, by executive action, dispense with laws; it is not only manifestly unfair, it is a breach of

section 15 of the Charter. Can the minister tell us whether he has accepted Justice Govan's ruling, in view of the Court of Appeal's recent rulings in the cases of Regina v. Dick and Regina v. Alphonse?

[2:15]

Hon. J. Cashore: My previous answer stands.

The Speaker: A final supplemental. However, I would remind the hon. member that the minister has said he will not comment on this case.

J. Weisgerber: Have wildlife officers now been instructed to enforce all sections of the Wildlife Act without regard to race or colour, or has the minister issued specific instructions that would exempt natives from certain sections of the act? If so, can he tell us which sections of the act no longer apply?

Hon. J. Cashore: Wildlife officials continue to function in light of the developing scenario, and they continue to be in close contact with my office on this. We will continue to keep you informed on this.

PROSTITUTION DANGER TO GROUP HOME YOUTH

V. Anderson: My question is to the Minister of Social Services regarding a concern the community has. Would the minister please explain for the benefit of the community how she is responding to the report that a 14-year-old pimp is using girls from a Coquitlam group home as prostitutes?

Hon. J. Smallwood: I too was very concerned to hear that yesterday. So we went to see if there was any contact between the RCMP and our ministry with regard to this issue. There was none. We followed that up with the RCMP and found that there is no specific concern with a group home in our ministry. The incident does not involve children in care in this ministry. The young man that the RCMP are dealing with is not a ward of the state, so there is no direct involvement with the ministry or with our group home. We have the assurances of the RCMP, and we've spoken directly to the group home to seek assurances that there has been no contact with our group home.

V. Anderson: I appreciate the minister's reply. I ask the minister again: what is she doing to convey to the public some sense of assurance? The public hears these reports, and unless they get a response to assure them....

Hon. J. Smallwood: I had an opportunity to speak to reporters in following up on this issue. When we're dealing with vulnerable children, in particular, it's very important to be very careful about any accusations that we might make.

The Speaker: Final supplemental, hon. member.

V. Anderson: Has the minister advised other group homes and others who might be concerned by this, so that they can be forewarned? Because in similar situations where advice goes out to schools, it's very important that they are aware of it ahead of time.

FUEL TAX EFFECT ON B.C. AIR CARRIERS

D. Symons: My question is to the Minister of Finance. The government recently rescinded its ill-conceived jet fuel tax, but only for eligible international air freighters. I'm concerned. Can the minister assure this House that air carriers based in British Columbia are also exempt? Will he guarantee that foreign carriers will not have a tax advantage?

Hon. G. Clark: We're absolutely delighted with the prospects of development at the Vancouver International Airport. There are exciting plans for the development of a third runway and new terminal. We've been in consultation with Mr. Emerson, who I

[ Page 8405 ]

believe members opposite might be familiar with, the CEO of the airport authority. They made an appeal to the government that if we could eliminate this tax on business that is not now in Vancouver, they would go out and market that and successfully add to the business in British Columbia. So we listened, took the advice of that business community and acted. We're now optimistic about significant expansion of air freighter traffic in Vancouver as a result of the relationship we've developed between the Vancouver International Airport Authority and the B.C. government.

D. Symons: I enjoyed the minister's flights of fantasy, but I didn't hear an answer to the question. Are we going to be disadvantaging B.C.-based companies? That was the question.

Hon. G. Clark: Air cargo is not now carried in British Columbia.... There is no business. It was argued that there was a disincentive to that business by various tax forms and other issues. The airport authority made significant concessions. The government has made a concession in order to go out and recruit new business -- to add business to British Columbia.

I want to assure members of the House, however, that we've had discussions with domestic carriers who have not been in that business. They are not disadvantaged. If business grows in this new area, we will continue monitoring with the domestic airlines to ensure that there is no disadvantage, so that our airlines can compete for this new incremental traffic, this new business opportunity, here in British Columbia.

TATSHENSHINI DECISION AND B.C. MINING INDUSTRY

D. Jarvis: It's good to be back, hon. Speaker.

The Premier told the people of B.C. about the new wilderness park while standing in front of a poster a few weeks ago -- a picture of a white glacier, a pristine river, Indian paintbrush and other wildflowers. I'd like to ask the Premier: sir, were you aware that this scene is not the Tatshenshini but 15 kilometres inside the Alaska border in the Tongass National Forest?

The Speaker: The hon. member for North Vancouver-Seymour.

D. Jarvis: To the Minister of Mines. Several days ago you said that the miners of B.C. had bought into your programs and were actually even expanding their mines. Why didn't you say that the Gibraltar mine was laying off 50 percent of its employees and, also, that this expansion was three years down the line?

Hon. A. Edwards: Isn't it interesting that when we're looking toward expansion three years down the road, the member across the way doesn't want me to talk about it. He only wants me to talk about something that would suit him. But let me tell you that the mining industry in B.C. is looking three years down the line, and that's very exciting. We continue to look forward to what the mines can do one year, one month or three years down the line.

D. Jarvis: It's too bad that you didn't tell us about the bad things, only the good things.

In any event, because of your Windy Craggy decision it appears that this government is continually undermining the CORE process. I ask the minister: why are all the miners in B.C. resigning from the CORE table?

Hon. A. Edwards: I haven't heard that all the miners in B.C. are resigning from the CORE table, but there are certainly some who have gone away. But it is interesting to look at the kind of support that our decision is getting. It is becoming more and more obvious that it has support. A release that came out earlier this week from the Champagne-Aishihik people in the Yukon says that their first nations support the decision to preserve this very unique wilderness area. It's very clear that those people support it, contrary to what this member said yesterday.

So I like to be very careful about what kind of question I take from this member, who seems to generate more heat than light sometimes, and sometimes gets more gigajoules out than he might otherwise expect.

FUNDING FOR SPECIAL NEEDS CHILDREN

H. De Jong: My question is to the Minister of Education. During a previous debate the minister mentioned that the block funding previously available for the specific purposes of special needs children would be reallocated through a system of grants to all applicable schools. Can the minister confirm that statement today?

Hon. A. Hagen: During the estimates we extensively discussed the fact that in our independent schools program we would now be targeting funds to special needs children in the same way that we target funds to children in the public education system. A policy has been developed to meet the needs of those schools that are providing special needs services to children in the independent schools, and those schools are funded accordingly.

The Speaker: The bell signals the end of question period.

On a point of order, the hon. member for Fort Langley-Aldergrove.

G. Farrell-Collins: Earlier in question period -- and I'm bringing it up after question period -- the Minister of Municipal Affairs made a comment that we wish to respond to. The Speaker ruled the Leader of the Opposition out of order, yet failed to rule the minister out of order. Perhaps the Speaker can give us some indication as to why she's ruling our members out of order before they even have a chance to ask the question.

[ Page 8406 ]

The Speaker: As I'm sure the hon. member well knows, that is not a point of order. But for the information of all hon. members, the guidelines around question period are clear in terms of not....

Interjections.

The Speaker: I ask for order while the Chair is replying to the point of order. The guidelines for question period are clear, and so is the prerogative of the Chair to recognize members who stand to ask questions. If members stand to ask questions, the Chair makes that choice to recognize the member. The Chair has ruled in this matter. It is not a point of order, and I will not take debate on the point of order from the hon. member.

The hon. member for Fort Langley-Aldergrove is rising. If it is a new point of order, the Chair will hear that. Please proceed.

G. Farrell-Collins: It's a new point of order. The Leader of the Opposition was indeed recognized for a supplementary. He was cut off in order to sit down, hon. Speaker, before you had even heard his question. How can you rule him out of order when you don't even know what he's going to say?

The Speaker: Order, please. Regrettably, I have to say that the hon. member is debating with the Chair, which is not allowed. The Chair is always willing to discuss matters outside the chamber if discussion is desirable, and I invite the member to do that.

Orders of the Day

Hon. M. Sihota: I wish to call committee stage of Bill 65, the Employment Standards Amendment Act, 1993. I also wish to advise all hon. members that Committee A will convene in the Douglas Fir Room to consider the estimates of the Ministry of Municipal Affairs.

[2:30]

EMPLOYMENT STANDARDS AMENDMENT ACT, 1993

(continued)

The House in committee on Bill 65

[E. Barnes in the chair.]

On the amendment to

section 3.

L. Hanson: Just before the change in the agenda we were starting to debate the amendment. I was trying to make the point that in other sections the bill seems to leave a certain amount of discretionary decision on the part of the director of employment standards that if minor variations from the Employment Standards Act are offset by other issues, the total result is that the variation from the employment standards minimum would appear to be minimal, if that's fair to say.

What I think the minister is doing by this amendment and the requirement to notify is asking the various parties to make a value decision as to the level of change from the employment standards minimum. It's possible that during a negotiating process there may be a report of a deviation from the minimum standards simply because they're not happy with the result of the negotiation process, so my colleagues and I would have to oppose the requirement for both parties to advise the director of possible deviations from the employment standards minimums.

I see nothing wrong with the requirement to file the agreement and the director then making up his or her mind as a result of the evidence before them, but not on the basis of an opinion by either or both of the parties. For this reason, I would have to oppose the amendment. Maybe the minister would comment.

Hon. M. Sihota: First, let me express my gratitude to the hon. member and the critic from the Liberal Party for agreeing to the change in scheduling this morning to accommodate the Minister of Health and the Liberal Health critic.

I agree that you could have a situation where the parties themselves negotiate an agreement and one party to the agreement notifies us through the ministry that they don't think a provision in the agreement complies. That could happen. Notwithstanding this provision, we probably would have found out in any event because the party would have complained. It just makes it easier, from an administrative point of view, to know the range of provisions that may be captured by the legislation. It saves us the job of having to work our way through 4,000 or 5,000 collective agreements every time they're filed.

If a party thinks there's a question, they notify us. I agree that a party that's simply upset about an agreement may do that, but this is simply the provision that flags the concern. It doesn't mean the concern is valid. It just allows us to do the investigation a little more quickly.

L. Hanson: I can understand and appreciate what the minister is saying, but it still seems to me that it's a hazard to the bargaining process. I suspect that even though the result may eventually be possible without this amendment, the requirement would encourage the two parties to see how far they could deviate from the standards and then through the process ask the director to mediate or in fact analyze the changes that have been made to see if they're acceptable.

If the minister is suggesting that the two parties would reach an agreement and then say, "We've deviated, but we don't know if this is acceptable," and that it's the quid pro quo on the other side of the thing that should have the balancing effect, I think it's already encompassed in the bill. I think the two parties have that ability anyway with the other sections of the bill. But I see little protection for either party, or for the employment standards side, in this requirement to advise.

Another concern I have is that if there was a reluctance on the part of either of the two parties that had reached this negotiated agreement to advise the director because they felt that there wasn't any change regarding the employment standards, and upon scrutiny of the agreement the director finds that there is, what is the situation then? Does the director say:

[ Page 8407 ]

"You fellows didn't live up to the letter of the bill"? What penalties are involved?

Hon. M. Sihota: There are a number of points. First of all, just to go back to your first point, if there is a disagreement between a union and an employer with regard to whether or not it falls below the minimum standards, one would expect that issue to be dealt with through the grievance process and not by us, through employment standards.

The second point is that we would go in if there was a significant violation in an agreement, where the parties essentially colluded -- if I can put it that way -- to violate the provisions of the legislation. The third point is that if there is a violation of

section 3(4) -- in other words, the amendment -- and the parties don't comply with the section, there's no offence at all. We just have the power to investigate, as we would under

section 82 of the legislation. In other words, there's no offence provision here. The consequence is that if we discover it, we will have to go in and investigate, and there may be some consequences as a result of that investigation. But there's no offence per se for having violated

section 3(4).

L. Hanson: I can certainly accept that. But I wonder why we need this

section to amend the act. Obviously, when you read the whole act, there is an inference that the absolute line regarding minimum standards can be a little hazy, or there wouldn't be a requirement for the director to make a decision as to whether it has met the minimum standards. To suggest that if that's the case, it doesn't really make any difference.... You're requiring the two parties to advise if they think there's any deviation from it. But if in their negotiating process they don't see any deviation -- that's their understanding of it -- then they don't have to report.

The director then gets the agreement, looks at it and says, "Yes, there is a deviation," and goes back to investigate. I'm not sure what the minister is accomplishing by this amendment, which says that you are supposed to tell us if there is a deviation. It seems to complicate the system more than it already is. Of course, a lot of this comes with the understanding that we disagree philosophically with

section 2; it's not needed. It puts a responsibility on the two negotiating parties which, in the rest of the act, the minister clearly said is the responsibility of the director.

Hon. M. Sihota: It strikes me that the value of having this

section -- apart from the administrative issue that I raised earlier -- is that during the negotiation process it forces the parties, knowing that the

section is there, to discuss areas which may be close to that line, and to engage in a process of self-compliance as a consequence thereof, knowing that a duty is placed here. Hopefully, the parties will work out those differences so as not to have to invite an investigation by the director.

L. Hanson: I find that a little hard to digest, because the fact that Bill 65 is there pretty well puts everybody on notice as to what the rules are. I'm not sure that, simply by the existence of the act, the requirement to advise the director of some deviation enhances the awareness of the two parties. The minister well knows the negotiating process; they would certainly be aware of it. I find it a little hard to understand that reasoning, quite frankly.

Hon. M. Sihota: As you know, later on in the legislation, it allows people to negotiate variances and to sort of dip below certain standards. If they do, then the value of us knowing that, and having them tell us that, is so that we can make an assessment of the legislation and how it stacks up against the agreement. That would be another benefit of having this provision.

[2:45]

Your argument, basically, is that it may be overkill, given the fact that the notice is there. I guess my argument is that there are some benefits. I enumerated three of them: some administrative ease would come to us; some greater knowledge on the part of the parties -- which you noted with a degree of legitimacy, quite frankly, that they would know about in any event; and thirdly, not to just trigger self-compliance, but to notify us so that we can be confident that they haven't violated the principle of the legislation.

L. Hanson: I understand what the minister is saying. But I think the main opposition to this amendment is the fact that it requires the two parties to make a decision that clearly is given to the director of employment standards in the legislation. That's the difficulty I have with it.

Hon. M. Sihota: This legislation tries to encourage self-regulation as a matter of approach. These provisions are in the legislation to encourage a degree of self-regulation and to allow the parties to work out these kinds of issues and to regulate themselves so as to limit the calls to the director of employment standards to deal with the other areas, where people are unorganized and require assistance. Again, it furthers that objective.

G. Farrell-Collins: Given that it's an encouraging

section as opposed to anything that has a penalty, isn't this type of thing better left to policy? Isn't it better to let people know that we would like them to do this? If they choose to comply, it would help us out. Isn't that more the way to go in this case, rather than shift the onus for self-recrimination to whether it's a real violation that they're going to be penalized for? Isn't it asking people to make decisions which it's not really their job to make? I know they may well be aware of the areas where they fall below, but isn't that decision better left to the director?

Isn't there something where we can get rid of the amendment and just use it as a policy and not have to bring it into a form of legislation where there's no requirement to comply, despite the fact that it states that there is no penalty? It's merely a guidance or encouragement, as the minister said. It seems to me that that type of thing should be done with policy and letting people know. We seem to do an awful lot of things as policy rather than actual

[ Page 8408 ]

legislation, including fair wages -- which is fairly major. For a small clause like this, rather than put the parties in that potentially difficult position, isn't it better to have it set by policy as opposed to legislation in this case?

Hon. M. Sihota: I'm not sure if you're really disagreeing with the intent. You may be disagreeing with the way in which it is exercised -- i.e., legislation versus policy. Should it be within a statute or should it be a matter of practice? We have always chosen to put it into statute. It does serve some purposes over and above what I've already enumerated to the hon. member for Okanagan-Vernon, in the value that it would provide us in being able to monitor and analyze what's happening on an ongoing basis. To my knowledge, no other jurisdictions allow for these variations within the parts in legislation.

Because of that, this will give us an opportunity to regulate, watch, monitor and analyze what is transpiring in this case and to see whether any further changes are warranted.

G. Farrell-Collins: When we are drafting legislation I think it's important that we make a point of not drafting legislation that people don't want to follow -- or if they break it, there's nothing there to stop them. Those types of things are better set as policy -- asking people to comply and getting a process in place. I don't necessarily agree in principle that it's the duty of the employer and the union to flag those things for the director -- to do his job for him or her.

But if the minister insists on doing this, then it should be done through policy as opposed to legislation, because it's throwing out part of the act with no recourse if people don't comply. It's the wrong attitude to foster out there. Legislation should be there so people comply with it. To put something in legislation that you sort of want people to do and you're asking them to do -- without any repercussions -- is the wrong way to go when it could more easily and more effectively, in the long run, be done by policy as opposed to legislation.

Hon. M. Sihota: In his report, which forms the basis of this legislation, Professor Thompson indicated that he found it unacceptable that people would engage in contracts that were below the minimums established in legislation, particularly in an area of social policy. We've had that debate, of course, during second reading. Within a particular part, we still allow contracts -- and obviously we'll be dealing with that after we deal with this amendment -- that fall below the minimum to be made.

In recognition of that, it seems to me that there is some value in having the parties themselves advise us where they have chosen to make a decision, so that we can make an assessment of the legislation as it relates to the collective agreement or the agreement that has been negotiated. So there is that value, and I don't think that that should be dismissed out of hand. We feel that to require that as an affirmative duty on the parties is appropriate in legislation. You're right, it could be done simply as a matter of practice or policy.

But given what we're allowing the parties to do here, it seemed to me that in order for us to assess what's transpiring and, quite frankly, to save some administrative resources, it would be a benefit or of some assistance if the parties themselves were to provide the notification.

G. Farrell-Collins: I don't want to take it too much further. I just want to perhaps offer my

interpretation of what's going to happen. I think you're likely to find that those employers and unions that you're not really worried about are going to report, and the ones you're trying to deal with aren't going to report. I don't think you're going to achieve anything by putting this

section in here, other than put a

section or clause in

an act that further reinforces the fact that these people don't have to follow the law if they really don't want to. I think that's all you're going to accomplish. I don't think we're really going to provide any net benefit to anybody here and perhaps do some harm in the long term. But it is a philosophical issue, and it's a choice the minister is making. I won't support it, because I don't think it's the right way to go. I don't think the minister is going to achieve what he intends, and, in my opinion, he is really not going to achieve anything at all by doing this.

Amendment approved on division.

section 3 as amended.

G. Farrell-Collins: We're dealing with

section 3, which I guess is the amendments to

section 2. I want to bring up a couple of things here. I guess we can address it from a couple of different points of view. If I may, I'd like to look first at subsection (3) of

section 3. I have some comments on subsections (1) and (2) also -- the timing etc., and how that will work.

If we could just focus for a minute on subsection (3), particularly part (a), it says: "...the sections of the applicable Part or regulations are deemed to...." I'll just read subsections (3) and (3)(

a) to see how they fit together so we can sort of get moving on this. Subsection (3) states:

"Where the provisions of a collective agreement respecting a matter referred to in Column 1 of subsection (2) do not, when considered together, meet or exceed the minimum requirements established by the sections of the applicable Part or regulations referred to in Column 2 of subsection (2), when considered together, (

a) the sections of the applicable Part or regulations are deemed to be incorporated in the collective agreement and to replace the provisions of the collective agreement respecting the matter...."

I think there's perhaps a potential for a misinterpretation of this section, and it's really only wording. I think it states that if even one item or clause of a collective agreement within that part falls below -- the way (

a) is worded -- "the sections of the applicable Part," then all of the sections that fall within

Part 3, 4 or 5, whichever applies, would now become part of the collective agreement. I don't think that's the intent; I think the intent is that the deficient clauses within that applicable part would come into play. I think we have a bit of a problem here which may be cleared up with a very small amendment. I apologize to the minister for

[ Page 8409 ]

not giving advance notice of it, but I'll just read the amendment and then pass it over to him for consideration.

I'm amending subsection (3)(

a) to state: "the sections of the applicable Part or regulations are deemed to be incorporated in the collective agreement" -- which is what's there already, and then I'd like to add -- "to the extent necessary to replace the provisions of the collective agreement which do not meet the minimum requirements established by the sections of the applicable Part or regulations." Essentially, it pinpoints the actual deficient clause in the collective agreement and applies the minimum standard to that, as opposed to applying the whole part to the collective agreement. I think it's a wording problem. I would move that amendment.

On the amendment.

Hon. M. Sihota: I don't agree. I've tried to read it again, because I read it in much the same way that the hon. member had read it, I could see how he had read it in a different fashion, now that he provides us with the amendment and his comment that preceded it. But it seems to me that the words "sections of the applicable Part" -- and I underline the word "applicable..."

An Hon. Member: With a capital P.

Hon. M. Sihota: Yes, even if it's a capital P. "...or regulations are deemed to be incorporated in the collective agreement and to replace the provisions of the collective agreement respecting the matter...." It seems to me that the purpose of that

section is to correct the particular

section that's deficient.

[3:00]

The other point that I'd make is that even if I were wrong, the court, when looking at this kind of situation, would ask itself what the Legislature was trying to do -- which may behoove many of us with regard to this legislation. But it would seem to me that the court would easily conclude -- particularly because I'm about to say it -- that we weren't trying to replace a whole chunk of a collective agreement, but rather the diseased portion, if I can put it that way. If the court or the director of employment standards was to do any surgery on a collective agreement, they would only do it to that portion which required attention.

G. Farrell-Collins: I understand the minister's argument. However, in my opinion, the words "replace the provisions of the collective agreement respecting the matter" are suitably vague. I don't think that the minister, who is obviously concerned -- as we all are -- about the employees in this case, would want to see an employer go through this process and say to the director, the arbitrator or the courts, if it has come to that -- whoever is doing it -- that this

section means that they can actually downgrade those provisions within that part to make them.... In fact, they are required to under subsection (3)(a), because of the wording.

I understand what the minister is trying to say, but I'm not convinced that it's as clear as he thinks it is or as he's suggesting it is. We know that this is a very complex and difficult bill. I think the proposed changes will make it very clear, with a relatively small change, that that's not the intent. I hope that we can provide that direction right here today, so that we don't have lawyers, employers and trade unions arguing this before the courts, where it costs money. I think we can clear it up right here and not force that type of decision somewhere down the line.

As I said, the amendment is offered in good faith. My intent here is to try and make the wording clear, so that nobody has to come back and fight this before the courts.

Hon. M. Sihota: The more I read this, the more I become persuaded that it fits. Subsection (3)(

a) says "the sections of the applicable Part." The presence of the word "sections" makes it clear that we're not talking about the entire part.

G. Farrell-Collins: I disagree. We can argue the semantics of it, but to me "the sections of the...Part" can just as easily mean all the sections as a particular section.

If the minister wants to change the wording to say "the relevant sections of the applicable Part," that would make it clearer. Maybe that would be a simpler amendment. But by just saying "the sections of the applicable Part," that could mean all the sections of the applicable part. There's certainly no limitation; it's not exclusive sections. In fact, in my opinion, it could just as easily be interpreted as inclusive sections, to include every single one of them.

As I said, if the amendment I've offered doesn't clear it up, or if there's an easier way to put in the relevant sections of the applicable part, I'd be happy to make that change or have the minister make it. I just think it's important that we clear this up here, so it's not going to cost a lot of people a lot of time and effort later on.

Hon. M. Sihota: If you look at

section 2(2) of the old legislation, it says: "Where a collective agreement contains any provision respecting a matter set out in Column 1 of the following table, the Part of this Act set out opposite that matter in column 2 does not apply in respect of employment pursuant to that agreement." Then it lists two parts. Then

section 2(3) states: "Where a collective agreement contains no provision respecting a matter set out in Column 1 of the table to subsection (2), the Part of this Act set out opposite that matter in Column 2 shall be deemed to be incorporated in the collective agreement as part of its terms." We have had no difficulty with people interpreting those provisions. These are even clearer than what was in there in terms of what is being put forward as a legislative provision. So I'm not persuaded that....

I see what you're doing, and I can see the thought process that got you here as clearly as you can see how mine got me here as well. But it seems to me, given that the older provision has survived and given the clarity we have provided with this one, that we're okay.

[ Page 8410 ]

G. Farrell-Collins: I assume that the minister is arguing that where in the old act under

section 2(3), the second sentence says: "...the Part of this Act set out opposite that matter in Column 2...." Is the minister saying that the sections of that part are clearer? I'm not trying to be obstructive. I'm saying that by saying "the sections of that Part," we may be.... I can argue it the other way around and say that by doing that -- by saying "the sections of this Part" -- you're pushing it just as much in the other direction. By saying "for the sections," you'll be including all of them by making that change and by saying that explicitly in the act.

As I say, I'm not trying to bang this thing around for hours. I'm just trying to put in a small change to clarify it, so that this debate doesn't have to go on with everybody else out there.

Hon. M. Sihota: You and I have probably saved some client a lot of money by having this debate right now. I think we've clarified it during the course of debate. It may well be that the arguments that you and I have made, or variations of them, would be arguments that people would make before the director. I think it's been clarified as a consequence of these discussions.

G. Farrell-Collins: The minister and I spent some time in this House last fall, and I recall that during the debate on Bill 84 I used the same argument. The minister advised me that while what goes on here may guide, it doesn't really direct.

Hon. M. Sihota: I'll explain that. These matters would go before the arbitrator and the director of employment standards, where people would routinely bring in Hansard as a matter of evidence. The comment that I would have made on Bill 84 -- whenever we were debating it -- would have been on a matter before the court. If you recall the debate that we had on Bill 84, there were a number of occasions when I said that I was reluctant to comment on the

interpretation of a particular section. I knew those sections would be adjudicated by the Labour Relations Board, where an opinion by the minister through Hansard debate would be entered as part of the argument. That carries a lot of weight at an administrative level; it doesn't at the court level.

It is true that one could bring this discussion forward to the courts; it just won't carry the same amount of weight. In fact, quite frankly, it would carry very little weight, unless someone made this argument at the administrative level, and the tribunal or the arbitrator in question relied on it, and the judgment mirrored what we both agree is the intent of the section. In that case, it would carry a lot of weight. So it just depends on when and how it's raised.

But given the way that these things work with the director and the arbitrator, I think this discussion will clarify it. I say that on the record very consciously, so that it can be taken advantage of should there be a division of opinion with regard to the

interpretation that you suggested some may take.

G. Farrell-Collins: I guess we are going to disagree on it. It's far more beneficial to make it clear at this stage, and I think it's our job to make it clear. Indeed, I think that's what the whole committee process is about. By being reluctant to do so, I think we are causing other people down the line to have this type of discussion or argument, which will cost them money. I would just as soon see it cleared up one way or another -- if not with this amendment, then with one the minister puts forward. But if he's not willing to do that, I guess that's his choice.

Amendment negatived on division.

G. Farrell-Collins: The next portion I'd like to look at is subsection (3)(b), the next paragraph down. I have a couple of questions before I get too involved in it. My understanding of the briefing I received was that the director has recourse to intervene and repair deficient collective agreements, at the director's initiation or when a complaint is filed to the director by either of the two parties. My understanding also is that dispute resolution mechanisms exist within collective agreements to do similar things.

My reading of this is that an employee, an employer or a union representative could file a complaint with the director as well as go through the grievance process in their collective agreement. Is that a correct

interpretation? Are both options open to the various parties?

Hon. M. Sihota: No, that isn't correct. Under

section 80 of the legislation, the parties have to decide which route to go through. The intention is that they go through the provisions of the collective agreement.

G. Farrell-Collins: The minister is saying that the intent is quite clear under subsection (3)(b): that where a dispute resolution mechanism exists through the collective agreement or through collective bargaining, that is the intent, as opposed to having the director intervene. What scenarios would the minister see where the director would intervene? Would that only be if there was no complaint lodged by the other party and the director, of his or her own initiative, sought to go through that process?

Hon. M. Sihota: I may forget to answer one part of your question, so if I don't answer it totally, just ask me again. We don't need a complaint to launch an investigation. The amendment I introduced that we just debated would be a basis upon which we could take a look at an issue. I think there was something you asked right at the beginning that I haven't answered.

G. Farrell-Collins: I just read

section 80 very quickly.

Section 80 deals with other matters, particularly subsection (3)....

Hon. M. Sihota: And subsection (4).

G. Farrell-Collins: Yes, and subsection (4). Subsection 3 states that "...matters other than wages shall be limited to matters that arose in the 6

[ Page 8411 ]

months...." I guess you're relying on

section 80(4)(b): "...recourse before a court, tribunal, arbitrator or other form of adjudication of the subject matter of the complaint." Is that correct? What you're saying, then, is that there's no recourse to the director under another form of adjudication. You're talking about the dispute resolution mechanism that exists within a collective agreement; you're including that in there. Is it required to state that, in your opinion, or is that just going to be understood?

[3:15]

Hon. M. Sihota: That is always understood in legislation. But just one note: I say that the director may decline; there may be situations where the director would. In any event, that's incidental to your question. The answer is that those dispute resolution systems always seem to be captured by this provision.

G. Farrell-Collins: As long as that intent is understood, because historically this act hasn't really dealt with collective agreements to any great extent. We're now making it clear that another form includes any dispute resolution mechanism that exists within a collective agreement. It must be sought first, and the director, as you said, may decline. I would hope that the director would decline to get involved when that was in place.

Let me ask another question. Although I don't agree, the minister says the intent of this bill is to deal with rat unions, or unions that are, as he says, employer-dominated. If that's the case, isn't it unlikely that either party would be looking at using this process? Is it then that the complaint goes back to the director? If the director gets a complaint, the director will say: "Well, I can't get involved because of 80(4)(b)." Is the leeway still there for the director to step in when he or she feels that the process isn't working?

Hon. M. Sihota: That's captured by the answer I gave a few minutes ago which I described as being incidental. It was incidental to that question, but it is direct in terms of the provision "may." The director can investigate under

section 82. The "may" provision in there doesn't exempt them from taking a look at a situation where there may be dispute resolution provision existent in an agreement.

G. Farrell-Collins: Back to sections 80(4)(

a) and (b), subsection (4) states: "The director or his authorized representative may decline to investigate a complaint where the employee or person...." I haven't flipped to the front here -- does that include a trade union? I know this wasn't specifically written to deal with collective agreements. Could somebody argue that only an individual employee can lodge the complaint, or can a trade union lodge a complaint on behalf of an employee?

Hon. M. Sihota: I see where you're going. Just let me say that it's a matter of policy. The employment standards branch has always accepted complaints from a trade union as an agent of employees. That has been the practice and policy of the branch, and nothing here changes that.

G. Farrell-Collins: Again, it's my understanding that this

section -- in fact, the majority of the act -- was drafted to deal with employees who aren't protected by a collective agreement. Although there has been past legislation, we're putting in a

section here to deal with that, and we're specifically addressing those persons who are represented by a trade union. I just want to make sure that the implication of this is clear and that it will apply. I don't see it in the act. I would have thought that there would be some definition of.... Either we make the changes here, or we put "person or employee" in a definition and include a representative of a trade union in order to accommodate that. In my opinion, we're missing a couple of steps here. We're relying on past practices as opposed to actually putting it in place.

Hon. M. Sihota: Parts of this legislation to deal with trade unions have been examined by the director, examples being 5.1 and 6. With regard to the order of non-payment, which the director can make, what directs the investigation is when the director receives or obtains information pursuant to

section 12. It isn't defined by whom; this is "receives information." Of course, this has always been relied on in terms of the order-to-pay provision to allow trade unions, for example, to bring a matter to the attention of the director.

G. Farrell-Collins: That's fine as far as it relates to payment, but we're not just dealing with the payment of wages here; we're dealing with the whole kit and caboodle. That's what happens, I guess, when you take a piece of legislation that was drafted specifically for non-collectivized employees and try to dovetail them and make it apply to those with collective agreements. The wording of the whole act that we're relying on to support those changes doesn't coincide. I'm concerned that we're going to sort of hammer and glue this thing together and end up finding that one

part is made of completely different material than the other part and that the two aren't going to work very well without the subsequent consequential amendments throughout the bill or in the definition

section to clear up some of the incongruities. I'm still not comfortable that we've cleared it up and put the act and this

section of the new bill together in such a way that it will function easily and smoothly. I don't know how we can go about fixing it, or whether we should be making some small changes to try to make it work more smoothly.

Hon. M. Sihota: Remember, hon. member, that prior to the changes that were brought to

section 2(2) the legislation applied to trade unions. In many ways, all we're doing is going back to the time before the Social Credit government brought in the provisions that we're trying to remedy here. I don't have that discomfort, because that's how it used to apply. The second point I was going to make is that if you're arguing that the word "employee" is deficient in terms

[ Page 8412 ]

of being able to capture a trade union and it needs greater clarification, I don't think it does, for all the reasons that I've just amplified. But I will say that we do have this broader review going on, as you are well aware, with regard to employment standards. I think it's okay here, but it's certainly an issue that we can ask them to recanvass prior to the tabling of their report, I believe, this fall.

G. Farrell-Collins: Coming back a few steps in the argument process to where we were dealing with the "director may" portion, is it possible for the director to launch a separate investigation or process, even while that collective bargaining dispute resolution mechanism is playing itself out? With the "may" provision, it seems that the director could launch an investigation that would parallel the process going on through the normal collective agreement.

Hon. M. Sihota: It is possible that could happen.

L. Hanson: I thought I heard the minister say that if this

section of the act didn't work as he expected it to work, we could wait until the report comes through this fall. The question I have to ask the minister is: why didn't we wait for that report this fall, then?

Hon. M. Sihota: Finally some politics in this debate.

No, what I was trying to get at was.... I think the word I used was that I had no discomfort with the way in which it was worded. If the hon. member really felt that this additional issue, the definition of "trade union," had to be clarified in terms of drafting the legislation, it could be looked at in that review. But I think it's captured, in any event. I wasn't trying to ignite that political debate.

G. Farrell-Collins: It's too late. I will take a minute to deal with that. I know the minister has been grappling with this bill, as the opposition and the Third Party have, and indeed as both organized labour and their employer groups have been. Some time ago it was suggested that we were moving a little quickly on this piece of legislation, and that despite the political decisions made by the minister and the philosophical intent of the minister, perhaps we were rushing Professor Thompson and rushing the groups. I would say that's bearing itself out as we go through this.

The minister may be comfortable with the provisions that are in here. But I'm not hazarding a guess -- I know that members of the employer community and certainly members of the trade union community are not as comfortable with it as the minister says he is. In reality, I suppose the minister is probably not as comfortable with it as he says he is either.

I'm trying to be constructive on this and clean up some of these things, because if it's going to go in, I want to see it work -- unlike some of the other things we've done through this House, including sections of Bill 84. I think it's important that we do ask these questions and that we go through this, so that despite the hurried pace, despite the rush, and despite the discomfort that many people are honestly feeling over this whole process and this whole bill, we can try to fix up some of these things as we go through it.

Coming back to my original question: can the director launch or start an investigation into an apparent deficiency while the collective bargaining process or provision in a collective agreement is ongoing? The minister said yes, that may happen. Are we discouraging that? Are we encouraging the collective bargaining process to work? If a trade union and the employer are grappling with this, is there some time frame that we want to give the director to deal or not deal with this? How long are we going to let them work through it? I know there are other provisions in the act as far as time frame goes, but....

Hon. M. Sihota: Past experience tells us it's highly unlikely that the director would do that, but I'm not going to preclude the director from doing that. That's why I worded the response in the fashion I did, hon. member.

G. Farrell-Collins: I guess we're arguing a small point. I know the minister would probably rather see the dispute resolution mechanism work on its own and have the director come in only as a last resort to get involved in the process. I just want to know what the intent of it is. I understand that according to the act, the director still has that prerogative. But is the intent here that we let the collective bargaining process run its course, work through the dispute resolution mechanisms that exist there -- mediation, arbitration, whatever the process is -- and have the director come in only as a last resort when we don't seem to be getting anywhere?

[3:30]

Hon. M. Sihota: To be honest with you, hon. member, the only reason for my hesitancy is that I don't want to say something -- for all the reasons we just talked about a few minutes ago -- in terms of what I say on the record being used as evidence if there was a hearing to deal with these kinds of issues. That's the only reason I'm hesitant to confirm the tenor of your comments. I would say that the practice has been precisely that: it is sort of seen as an unusual move. But I just don't want to say something on the record that would fetter the discretion of the director. I must confess that you have accurately described the practice as it has been.

G. Farrell-Collins: I have just a last question, then. Are we not expecting this act to change that practice? Are we assuming that that practice will continue as it is right now?

Hon. M. Sihota: Two things: first, anything I say here ought not to be interpreted as fettering the discretion of the director in the case that he feels there's a reason for him to do so; but generally that has been the practice. And no, I can't see anything here that would change that general practice.

[ Page 8413 ]

G. Farrell-Collins: Given that open-ended statement, I would assume that the minister applies that caveat only to this

section and not to all his comments on this bill. Otherwise, we may as well pack up and go home, I guess -- which isn't a bad idea.

Hon. M. Sihota: Does it mean that if I place that caveat for all of the other provisions, we will be able to pass this quicker?

G. Farrell-Collins: I guess, having canvassed that one at some length, I would like to go backwards a little bit if we can -- or forwards, I guess -- to deal with some of the provisions. I'd like to look at

section 3, sections 2(1) and 2(2) in particular. I have some concern with the wording, of course, particularly in

section 2(2), where it says at the last few lines: "...if the provisions of the collective agreement respecting the matter, when considered together..." The whole Bill 65 almost hinges on the words "when considered together." It is a very nebulous group of words that can mean so much. I want to try to get some direction from the minister as to what we're headed at here, because I know that there is a great deal of concern out there as to what those three words are going to mean. The

interpretation can be very broad. Really, the parameters are endless. The variations of what "when considered together" means are endless. We're looking at a whole part of

an act, and all the individual provisions in that act, and then we're looking at the collective agreement and all the provisions within that collection agreement that relate to that part. We're trying to juggle them in some way. We're putting a huge onus on the process to try and come up with what that means. We're going to end up in mediation and arbitration. As I said when this first came out, I have heard labour lawyers who have commented on Bill 65 that they are going to make a lot of money. I would say that in fact they are, if they have any time left after Bill 84.

The

interpretation of those three words is really going to be the most contentious part of this act. Given the restricted time frame the minister has given on it, it is important that we provide some direction as to what that means and what the intent is behind putting those three words in there.

Hon. M. Sihota: I agree with you that the words "when considered together" are pivotal in the determination of the section. They try to capture what we're trying to do here: they allow for some flexibility within a part -- I think you know this anyway -- that would allow one to slide below the minimum level, but in other parts to exceed it and allow one to examine the agreement as it relates to that part as a whole, and to see whether or not it meets the standard in the act.

Let me just quote an example which is illustrative of the point as it relates to

part 3. The act requires payment of double time after 11 hours each day. In a collective agreement, perhaps double time is paid after 12 hours on a daily basis, and in addition for all hours worked on Sunday. That's how you could allow for some variation within the part, but when considered as a whole, you are still meeting the minimum standard that fits within the part.

G. Farrell-Collins: In trying to determine what that means when considered together, the minister has given us one example, and I appreciate that. It's probably impossible to go through every single scenario and drag them up and work through them, although I suppose we could do that -- we'd be here a heck of a long time.

I'm wondering if that provides the necessary flexibility. In second reading debate the Premier and the minister both commented that the flexibility still exists in the bill. The example that the minister just gave us, while only one example, is a very small amount of flexibility.

We have talked about other things and have heard anecdotal comments -- and I'm sure the minister has heard them too -- about people banking overtime and taking that as vacation time; people working for long hours for a number of weeks and then taking a lot of time off. Those types of provisions don't really feed back and forth, because they exist in different parts. Also, not just the amount of vacation but the rate of vacation pay may be negotiated relative to some overtime provisions elsewhere, where there is a drawdown on the vacation pay but better overtime provisions elsewhere, or vice versa.

Those things fall within different parts. Are we not taking away that type of flexibility by doing it by part? In looking at this it seems to me there are some realistic and fair trade-offs that exist and help to improve the collective agreement and that are between parts, as opposed to within a specific part.

Hon. M. Sihota: I am trying to think of a way in which I could frame an answer that avoids going back into second reading debate; I am not too sure that's possible. The legislation allows for some flexibility. It does not allow for totality of flexibility -- if there's such a way of putting it -- and as you know, it limits the degree of variation within parts. I think that has to be looked at in some kind of context.

As I said during the course of second reading debate, nobody else had the kinds of provisions that the previous administration brought in that allowed for a wide range of variances or flexibility -- whatever you want to call it. It seems to me that there is a public policy objective -- and granted, we get into more of a philosophical question at this point -- in saying: "If this is the law, then people ought not to be able to dip below the law in providing for conditions of employment for workers." You heard enough of that in second reading debate; I don't really want to go into it any more than that.

You can't turn the clock back ten years, and you know full well that some agreements have taken advantage of the provisions the previous administration brought in. You have to provide for some recognition of that approach having become now a part of our labour relations culture -- if I can put it that way. Therefore I think one is left with the sole option of making sure that there is some recognition of that

[ Page 8414 ]

culture in the legislation. But I also think, at least from a philosophical point of view, that we want to achieve the objective of full compliance and not have people sliding below on any aspects of it, as is the case in every other jurisdiction in Canada. We're trying to provide a degree of flexibility here but deny the full range of opportunity for variations that existed under the previous legislation. I don't believe for a moment that it would allow the extent of flexibility that you would like to see. But I think we both acknowledge that that difference of opinion is based more on ideological grounds than on any other grounds.

G. Farrell-Collins: I will also try to stay off second reading debate as much as possible.

Interjection.

G. Farrell-Collins: It is hard sometimes, particularly for some of us.

[3:45]

I would argue that this bill brings in arbitrary flexibility, and I don't think it's necessarily based on a practical sense. I think what has happened is that the bill tries to come down somewhere in the middle, as the minister says, to respect the labour relations culture that has been there and that has provided this flexibility. Yet on ideological grounds the minister wants to stop those types of violations of the law and has made some sort of effort to come down somewhat in the middle, although we would certainly differ as to where in that spectrum he has come down.

My feeling is that we've come down in a very arbitrary manner and that somebody drew a line in the sand and said: "Here's what we're going to do." I don't think we've really achieved the flexibility that's necessary. Certainly those issues were raised during second reading.

Also, as we're dealing with the ideology of it, I would argue that given what I've heard in second reading debate, this

section in particular is ideological. It's something the government has brought in because of their stated opposition to those deficient collective agreements in those rat unions, as they call them, that exist out there. My understanding is that almost all of those so-called employer-dominated unions came in in 1986 and after that time period. I would suggest that the collective agreements that were negotiated before that were done so in good faith and that this wasn't a problem at that time.

Indeed, the types of flexibilities that existed -- which may well be different from what's in these two columns -- were reasonable exchanges of benefits on the part of both parties, and they were done in good faith. In fact, they benefited both the employer, as to competitiveness, and the employee, as to flexibility in the job. Certainly having the company more competitive made their jobs more secure.

I would like to, if I may, move an amendment to this section. Again, given the time frame of this, I haven't had a chance to give this to the minister for his consideration. It would be that

section 3 be amended by adding the following subsection (5):

"Notwithstanding subsections (1), (2) and (3) of this

section 2, where a collective agreement was in force within the meaning of the Labour Relations Code as of December 31, 1985, and that collective agreement or a renewal collective agreement was in force on the date this act was brought into force and a provision of the collective agreement respecting hours of work, overtime, annual vacation or vacation pay, termination of employment or layoff, general holidays or maternity and parental leave does not comply with this act, such provision of the collective agreement between the parties shall be exempted from the application of this act until such time as the parties to the collective agreement negotiate a change in the terms of such provision."

As the minister stated earlier and throughout second reading debate, the intent of this bill is not to destroy the flexibility, to use his own words, that exists where agreements have been brought in in good faith. Indeed, I think the minister and the ministry have tried to come up with some flexibility or the provision for some variances to continue to be allowed. As I stated earlier, however, I do believe that the process of doing it has been somewhat arbitrary and in fact treads on the toes of those collective agreements. Employers and trade unions negotiated those in good faith, and they've been in operation for a long time without any real problems.

I think this amendment addresses the minister's ideological or philosophical problem with employer-dominated unions yet still allows collective agreements that were negotiated in good faith and indeed have proven themselves over a long period of time to function normally and continue. It's only right to allow collective agreements that have operated properly with the people who negotiated them to continue. They've operated in good faith for a number of years and certainly have not tried to violate workers' rights in any way at all. It would be a service to those employers -- and indeed those employees -- to allow those provisions to continue.

Hon. M. Sihota: Just on a point of order, I look to the Chair for direction on this, but I would venture to say that the amendment is out of order, in that it undermines the intent of the

section as it is now. The

section seeks to cover all collective agreements, and this would grandfather -- if I can put it that way -- agreements that were executed prior to December 31, 1985. On that basis I would argue that it's out of order.

The Chair: Thank you, hon. minister. The Chair is inclined to agree with you. It is a fairly complex matter, but in light of the minister's rejection, the Chair will sustain that position.

G. Farrell-Collins: Just a submission, hon. Chair -- if it's not too late -- before you make up your mind. I understand the minister saying that it's to include all collective agreements. Certainly the intent was clear throughout second reading debate that there are agreements that there's no problem with. I think what we're trying to do here is comply with the House's ruling and decision on the intent, certainly with what was discussed in second reading, yet not tread on the

section too much. Clearly the intent is to try to stick with what the House passed in second reading and to

[ Page 8415 ]

implement it in a very limited sense by grandfathering some of these provisions to make the

section comply better with what the House passed during second reading on Monday last.

The Chair: Thank you, hon. member. The Chair will stick with the original position that the amendment is out of order.

G. Farrell-Collins: I would give the minister some time to think it over. Perhaps he has some ideas of other ways of doing similar things. Maybe the date is a problem, and he might want to look at something like that. I would encourage the minister to look at other ways of achieving the same end, certainly to keep the

section more in line with the discussion that the minister and the Premier had on second reading so that we can change this

section to really stick with the intent that existed. I would encourage him to do so. We wish to go on with other areas of this bill, and he can come back to it at a later time.

L. Hanson: We still have a few minutes, then. This

section of the bill -- by the way, it seems to be retroactive too -- says that if a collective agreement has a variance in these standards listed in column 1, such as hours of work and overtime and annual vacation, this would override it and replace it with the standards in the Employment Standards Act. During the course of negotiations, it doesn't seem to me that an exchange for some reduction in the issues in column 1 would necessarily follow. The minister suggested that after 11 hours it was double time, and in exchange for changing that to 12 hours, an agreement could be made to pay double time on a Sunday.

Effectively, it deals with working overtime or on a holiday. If, during the course of these negotiations, the hours were increased from 11 to 12 before double time became effective and another concession was given in exchange -- such as a half-hour coffee break instead of a 15-minute coffee break as an everyday example; or a concession of double time on Sundays, as the minister mentioned -- the way the minister is applying this act, the only measurement of a balancing effect would be by the director. The balancing effect couldn't be another concession that had nothing to do with column 1.

Hon. M. Sihota: You're right -- if you're saying that it couldn't be outside that part. But the coffee-break example is within that part, so you could actually do that.

L. Hanson: That was a poor example, but I know the minister can use his imagination on what example it might be. If it's outside this list in column 1, then the director would not consider it a balancing effect.

With that in mind, I would like to introduce an amendment to

section 3. As we're getting near closing time, we can table it now to give the minister and his staff an opportunity to look at it. I move the amendment now, Mr. Chairman:

"Section 3 is hereby amended by adding to

section 2 the following subsection: nothing in this

section alters or makes void any provision of a collective agreement in effect before the coming into force of this act, or any provision of any agreement negotiated to replace such an agreement, provided that such replacement agreement is concluded before the expiry of the collective agreement which it replaces."

Hon. M. Sihota: They're worse than mine.

L. Hanson: I don't doubt that maybe that is going to be the minister's ruling. But I would like to spend a minute talking about why it isn't worse than the other one.

Hon. M. Sihota: Or better.

On the amendment.

L. Hanson: Or better. In fact, this would seem to me, first of all, to give the two parties the opportunity of completing the agreement. It would preclude that unfairness of this act that would reinstate in the agreement a minimum standard that was realistically and knowledgeably negotiated away in exchange for something else that comes outside the parameters of this list. In fact, if the two parties wished to continue that in existing agreements, it would give them the opportunity of renegotiating that before the agreement expired.

If either party felt that was not fair and reasonable, they could not conclude an agreement before the expiry of the old one, and then automatically would come under the provisions of this act.

[4:00]

It seems to me to give a balance to the negotiations that went on under other circumstances, and not have those balances or that negotiation that went on under different rules overruled and made retroactive by this act. But if either party felt that they wanted to have the agreement cancelled and the employment standards minimum put in place in their next agreement, it would simply be a matter of not completing the agreement before the expiry of the old one, and then the new rules would apply.

So I ask the minister to consider that amendment. It is quite different from the other amendment in the sense that it gives the parties, if they wish, the opportunity to grandfather the old, and also, if either party doesn't wish that, a very simple solution: having the new rules apply. It would not make retroactive an agreement that was made in the negotiating process to give up some of the minimum standards in exchange for something else before that had expired.

I see the time limit has arrived. I would ask the minister to think about this when we come back.

Hon. M. Sihota: It seems to me there are two things. First, the fact that we've got a provision in there that gives the party six months to get their act together gives them ample opportunity to attend to the problem.

Second, it seems to me that -- on a point of order -- this provision is out of order. Indeed, if the previous amendment was out of order, this goes further than the previous amendment and would really defeat the intention of the section. I'm not going to ask the Chair to

[ Page 8416 ]

rule on it at this time, so the hon. member can have the benefit of having this amendment alive for a bit longer. But I'm confident that it's out of order.

With that said, I move that the committee rise, report progress and seek leave to sit again.

Motion approved.

The House resumed; E. Barnes in the chair.

The committee, having reported progess, was granted leave to sit again.

Hon. M. Sihota: I call second reading of Bill 71.

HEALTH PROFESSIONS STATUTES AMENDMENT ACT, 1993

Hon. E. Cull: The proposed Health Professions Statutes Amendment Act, 1993, is the third of three bills that I am introducing this session to improve the governance of health professions in British Columbia. The Health Professions Amendment Act, 1993, and the Pharmacists, Pharmacy Operations and Drug Scheduling Act, 1993, were previously introduced, and they contained many of the same measures that are included in this bill.

Essentially, the bill makes five common amendments to 14 professions statutes. These amendments are intended to improve the accountability of the self-governing bodies which regulate health professions in British Columbia and to enhance their ability to carry out their mandate more effectively.

The first amendment increases public representation on college boards to a minimum level of one-third. As members know, this is one of the actions committed to in our New Directions strategy to ensure that decisions regarding self-regulating professions are made consistently within the public interest.

The second amendment is the addition of a duty and objects clause. This defines the public interest mandate for all governing bodies that regulate health professions. This is tantamount to a mission statement, and lists a number of objects which the college must seek to achieve in order to fulfil its duty and to protect the public. These objects include the following: to establish, monitor and enforce standards of education, practice and ethics; to provide programs related to patient relations, continuing competency and other matters; and to require registrants to provide access to or information about access to health care records in appropriate circumstances.

The third amendment is a requirement for an annual report to the minister from all colleges and associations at the end of each fiscal year. This is intended to improve the accountability of the self-governing bodies to the government and the public, and will enhance government's ability to supervise the colleges and monitor their effectiveness in carrying out their mandate.

The fourth area of amendment is intended to assist regulatory bodies in their efforts to maintain quality assurance and their ability to investigate complaints from the public regarding incompetent, impaired or unethical practitioners. An inspector for the college may conduct routine inspections of a member's practice without a court order. Furthermore, new search and seizure provisions allow a person, authorized by a board, to apply for a court order, allowing him or her to conduct a search of the member's practice, and to seize any evidence relevant to an allegation of professional misconduct, impairment or incompetence.

[M. Lord in the chair.]

The fifth and final change is the addition of a power to suspend a member from practice prior to a disciplinary hearing. This extraordinary action is sometimes necessary to adequately protect the public from practitioners who may pose an immediate threat to patients.

The regulatory bodies affected by this bill include the College of Physicians and Surgeons, the College of Chiropractors, the College of Dental Surgeons, the College of Psychologists and the Registered Nurses' Association of British Columbia.

This bill is an interim measure to address immediate and serious deficiencies in our health professions legislation. As announced when we discussed the other two bills that are related to this and our New Directions strategy, a more comprehensive review of the scopes of practice and legislation for established professions will be conducted by the Health Professions Council commencing in the fall of this year.

In the meantime, these amendments will enhance the ability of health professions to regulate their members more effectively. This legislation clarifies that the overriding responsibility of every college is to act in the public interest. I'm pleased to be able to bring forward these amendments to this legislation at this time.

I just want to make three other remarks before I conclude my second reading statement. One, I want to acknowledge the fact that the opposition critic, who I believe is coaching a friend who is giving birth today, talked to me earlier about this legislation and graciously agreed to our proceeding with second reading debate. She has raised a number of issues related to the other legislation and also has indicated her support for these changes.

The second point I would like to make is that this legislation has been extensively discussed with all of the professional bodies that are affected by it, and all of these bodies are in support of the amendments. Finally, I would like to say that because of the issues that have been raised, particularly with respect to sexual misconduct by health professionals, these recommendations and these amendments to the health professions legislation will provide many of the safeguards that the professions and the public have been calling for.

They give the regulating bodies more tools to work with to be able to ensure that they can protect the public from all kinds of professional misconduct.

With those comments, I move second reading of this bill.

[ Page 8417 ]

J. Dalton: On a point of order, hon. Speaker, I believe that we no longer have a quorum.

Deputy Speaker: Your point is well taken, hon. member.

The Chair sees that we do have a quorum now, and recognizes the hon. member for Okanagan East.

J. Tyabji: I rise for second reading on Bill 71. As mentioned by the minister, the opposition Health critic couldn't be here. As the minister also mentioned, in principle the opposition is in favour of many of the changes in the bill. We do recognize that there has been extensive consultation prior to the bill being tabled in the House.

The first point that I want to make very strongly, though, is that we're in the last days of the legislative session and we have a bill here that's over 76 pages long, that was only tabled in the House on Monday and that has companion legislation in the same ministry. We've had virtually no time to review it. We've had very little knowledge ahead of time about when the bill was going to come up for debate.

We're now in second reading of the bill without, I think, adequate time to canvass the impact of sections of the bill, not just in terms of our own view of how the health care system should be reformed or in terms of the Royal Commission on Health Care, but in terms of each and every group that will be affected by this.

One thing was a little bit tricky. It took a while to realize that several sections of the bill were translated verbatim from every different act affected by this. Fifteen acts will be amended by this bill. In those amendments, we find a consistent approach on two fronts. One is a move to acknowledge through legislation some of the actions that were being taken by people within the professions before. I'll be discussing a little bit later whether or not we agree with the scope of the legislation.

But many excellent amendments listed here are long overdue in terms of freeing people within the professions, giving them some comfort in knowing that the actions they're taking from their perspective to advance either their profession or the public interest have legislative support.

The second tendency we see throughout this bill is the same one we see throughout this government: ministerial appointments who report back to the minister and a centralized control of the process. As I said, there are 15 acts regulating health care professions. In each one of these, the minister will be appointing no less than one-third, and in some cases just over one-third, of the people on the governing body. That's a concern. Time is of the essence here, and I didn't know until a few hours ago that I was going to be the lead critic on this.

But having reviewed this and talked to some of the people who had input into the preliminary consultation on the bill, the one comment that came forward was that they did not advocate the minister appointing one-third, or in some cases more than one-third, of the governing body. In fact, I understand that in one case a selection process was brought forward with the recommendation that the minister approve that selection process for public representation. The minister is saying that this bill is consistent with the more open style of health care that allows for public representation. That's only partially true.

Although there will be members of these governing bodies who are not from the professions, those members will be appointed by the minister. So it's not as if there's going to be some wide-ranging, non-partisan public process. Quite the contrary. Notwithstanding the recommendations of the people who will be governed by the governing bodies that a public process be followed, perhaps with ministerial veto or the minister having to approve the process, we find that the minister is appointing the members.

It's very difficult to go through this volume of legislation in adequate detail in so little time. But we note that under the amendments to the Nurses (Licensed Practical) Act, the minister had an opportunity to change a very archaic ministerial interference in the governing body.

It says: "...4 members must be nominated by the minister, and the minister must designate one of them to be chair and another to be vice chair." In that case, both the chair and the vice-chair of the governing body for the licensed practical nurses are people handpicked by the minister; and on that governing body of 12, four of them, or one-third, are chosen by the minister. That's hardly a public process that we can have some comfort is at arm's length from the ministry.

[4:15]

So the intent of the bill, I think, as the minister has expressed, is twofold: one, to allow some freedom for the professional bodies to act in a manner in which to some extent they've acted before without legislative support; and two, to allow public representation on the governing bodies. That's the minister's perspective. As opposition, we have a problem that the public representation is going to be directly tied to the office of the minister. That's centralized and much more autocratic than it could have been.

There was definitely a choice, in that the one-third representation of the public could easily have been through a wide-ranging selection process that went throughout the province and allowed for public input and for the governing body's membership to select which people from that public selection would be on their own governing board, with either the minister selecting the process or the minister vetoing the selection because of whatever the minister's reasons would be.

The other thing that I note here.... We have had some interesting debates, particularly this session, on the mind-set of a government that allows for wide-spread abrogation of individual rights -- expropriation and rights of search and seizure without appeal or an accountability process. I'd like to point to the section.... As I say, there are eight sections of this bill that repeat themselves through all 15 acts that have been amended, so you have these same eight elements. The only thing that is different is the composition of the governing body by profession. Out of these eight sections that are repeated, we find in

section 6,

section 9.2(1), the powers and the duties of inspectors appointed by the governing body: "...an inspector may investigate, inquire into, inspect, observe or examine

[ Page 8418 ]

one or more of the following without a court order" -- and we understand that in extraordinary circumstances we might, and I say "might" because it would really depend on the circumstances, allow that kind of leeway to the inspector -- "(

a) the premises, the equipment and the materials used by a member to practise...(

b) the records of the member relating to the member's practice of chiropractic and copy the records; (

c) the practice...performed by or under the supervision of the member." These are things that an inspector can by discretion go in and inspect without a court order.

Although we recognize that to some extent there has been a need to do that before, there is no accountability the way it is shown. When we look further under the powers and duties of inspectors, we see that the board may direct an inspector to perform those functions, and that in the event of the board directing the inspector, the inspector must report in writing to the board what the findings are.

But in the first instance, where the inspector can on his or her own discretion go in, copy records and basically examine the premises, equipment and materials, and inspect, observe or examine the practice of this member, which are huge powers, there is no accountability. Nowhere in here does it say that on completion of the exercising of the powers and duties of the inspector, the inspector must then submit a written report to the board, and in the event that the board finds those reasons questionable, the board then goes to the minister. Somewhere there has to be an accountability process.

Notwithstanding that, there should be some reporting of the inspector's actions to the general membership. We find here that we have the governing body in a position to appoint an inspector with a wide range of powers and duties that the inspector can follow up on, with no accountability and no reporting-back process. If there were a provision for an automatic report that the inspector would present to the board for presentation at the annual general meeting of the membership, then we would say okay, now we have some accountability.

Although we recognize that in a large majority of cases there will be no need for this and that inspectors will act responsibly, we should always allow for the chance that this might be -- not necessarily wilfully -- abused, that there could be an opportunity or circumstance where those powers and duties are used without justification; and when that happens, there should be a reporting process. We don't expect that the minister or the minister's staff could possibly monitor all the times when the powers and duties of inspectors would be used in all 15 of these statutes that are being amended.

We see that they have search and seizure under court order, which is very interesting. I'd like to canvass that more in committee stage. Although yes, we have to go to the Supreme Court, and we have all these provisions in here of all the different justifications for going to the Supreme Court, we know that there is going to be some litigation cost involved in going to the Supreme Court for some kind of ruling. Widespread powers are given in the

section on search and seizure, which is another of the eight things that are repeated throughout the bill. This bill lists many things that are justification for the Supreme Court to provide an order. For example, the Supreme Court can provide a court order to exercise widespread powers of search and seizure in the event that a person who is a member "is suffering from a physical or mental ailment, an emotional disturbance or an addiction to alcohol or drugs that impairs the person's ability to practise chiropractic." That's a subjective paragraph. Who decides what an emotional disturbance is?

It's interesting to note in that provision that it's not "and" that's being used, it's "or." The different reasons why the Supreme Court could provide an order for search and seizure in terms of a member of this professional body can be separated out.

It says here: "...enter into the premises or onto the land of the person named in the order at any reasonable time and conduct an inspection, examination or analysis, (

b) to require the production of any record, property, assets or things" -- that's pretty wide -- "and to inspect, examine or analyze them, and (

c) on giving a receipt, to seize and remove any record, property, assets or things inspected, examined or analyzed...for further inspection, examination or analysis." What is that? A chair? I don't know. It's not exactly what we would call tight legislation. So we've got sweeping search and seizure by court order. It has to go to the Supreme Court, and the justification that the Supreme Court will be looking at in providing that order includes, if we separate it out, someone suffering from an emotional disturbance. That's something we might want to tighten up.

How can we adequately canvass the parameters of the

interpretation of that

section when the bill was just introduced on Monday? And as we know, it's not as if this is the only bill on the order paper. I hate to quote from the media, but the term "landslide of legislation" is very appropriate. This is part of the landslide, and it's a big boulder. We can't possibly canvass the implications of these sections adequately, and I do have a problem with a person's rights being revoked in a manner that might allow for any kind of arbitrariness.

The fact that one of the five reasons given for providing a court order is something as potentially trivial, in terms of discretion, as an emotional disturbance is a problem. It's unfortunate that we don't have more time to go over this.

The interesting thing, again, is that we know that the bill has tried very hard to say that those things that have fallen under the court order for search and seizure should be given back as soon as possible, and the judge of the Supreme Court will try to make sure that they get back to the person who has been inconvenienced or affected, I guess you could say, by the search and seizure provisions. But it still might not apply. Even though property is being searched and seized potentially in a discretionary way and there are provisions for that to be returned immediately, in the next

section we say that if there's a judgment that this shouldn't be followed, then just ignore it. That could be a problem.

I do have a hard time doing this. It was only about three hours ago that I knew I would be speaking to this bill. There's no way anyone can give due consideration to legislation of this magnitude. We are dealing with legislation that amends 15 different statutes on the health care professions. Surely the minister, who spent

[ Page 8419 ]

so much time in the consultation leading up to this bill, wants due consideration of the legislation. In that case, I wonder why we haven't had a little bit more time, considering we have so many bills languishing on the order papers that have been there for a little while.

When we get to the eighth

section that repeats.... As I say, we've got these big chunks, and under each of the 15 statutes we have repetitions. The only thing that really changes is the designation of the governing body, whether that be a board, council or college. When we get to the eighth part, which is called "Extraordinary action to protect public," there is no appeal process that I can see, except through litigation. Litigation is generally beyond the means of the average person, although we might argue that people in the professional field have more money than those who are below the poverty line.

I don't know that we want to argue that. In my mind, whenever there's an opportunity to bypass litigation, we should take it. I think it's unfortunate that the only appeal provision is to the Supreme Court, because I think that's going to result in some extra cost.

There doesn't seem to be an adequate process for determination -- for example, when the board determines that the extraordinary action taken to protect the public can be lifted. The reason I say that is that things are laid out in this section: here are the extraordinary actions that can be taken to protect the public. It says: "If the board considers the action necessary to protect the public during the investigation of a registrant or pending a hearing of the board, it may (

a) set limits or conditions on the practice...or (

b) suspend the registration...." In the event that the public safety is at risk -- and I'm sure the minister has all kinds of specific examples -- that seems fair.

However, when you go down to subsection (4) you see: "If the board determines that action taken under subsection (1) is no longer necessary to protect the public, it must cancel the limits, conditions or suspension and must notify the registrant in writing of this as soon as possible." I should say as well that the decision to suspend is not in effect until the member has been notified or until three days after the notice has been sent out, which is good.

But in this case, there doesn't seem to be a process of determination, unless there are regulations that accompany the bill, which I don't see any sign of; and we'll get back to the

definitions a little bit later.

Because there's not really a process of determination, it seems like you've got 15 different governing bodies who are left with a large discretionary avenue for determining when.... It's sometimes easier to determine when public safety may be at risk, and we would always want to err on the side of caution.

But in the event of a situation where a member of a profession has had their professional duties stripped by the board, I think we would want to have some set of guidelines to whatever governing body it is, saying these are the guidelines by which, as soon as there is a reasonable determination that there is no longer justification to take extraordinary action, it would be lifted immediately, so that it's not left in a situation where the board has taken the action and then gets busy doing something else or in the course of business doesn't review it, and we have some poor person out there who has had their practice restricted and at the point that they no longer constitute a threat to public safety are still in a position where their rights have been abrogated by a board that has discretionary power in terms of re-establishing those rights.

[4:30]

Whenever any kind of extraordinary action is taken, I think you want an automatic accounting process to the ministry or somewhere else. I think you want to make sure that those governing bodies are going to be accountable not just through the legal system and through the litigation process.

In some way -- whether it be through the ombudsman's office or through the Attorney General's office -- I think there should be some objective body that would then be on the receiving end of just a simple reporting process, so that we don't have the ability for extraordinary actions to be taken without the knowledge of some senior branch of government that might say: "Just a minute, we think this has overstepped the line."

We've seen this kind of legislation come out repeatedly through the Attorney General's and the Minister of Environment's offices throughout the session. So we do see that there's a real pattern developing here; it's sort of a benevolent dictatorship, if you will: "We know we're doing the right thing." Actually, I should say the most glaring example was Bill 33. We have the mind-set of the government coming out in this and other legislation that says: "We know best, and therefore we will do this legislation because we're in government.

And we'll make sure that nobody steps over any lines, because if they do, as the Attorney General said,'Well, the media will catch us in the hallway and then we'll take care of it through the public relations process'" -- which the opposition doesn't find suitable.

I think a few

definitions are lacking -- from my reading of it; I have to say again that my reading of this is just a couple of hours of work -- so in her closing comments the minister might want to address this. Several things come up a number of times in the 15 different sets of amendments. One is the overriding concern to protect the public, in terms of the public interest. I don't see a definition of public interest in the bill. Maybe that's coming with guidelines -- I don't know. But to me, if there isn't a definition of public interest for the purposes of this bill, then I think there's a problem.

The other thing that comes up a number of times, in terms of the governing boards having certain objectives, is "unethical practice." What constitutes unethical practice has to be determined by those bodies -- by the membership. I'm not sure if it's in this bill or accompanying guidelines, or if the minister is going to be overseeing this, but many professional bodies do have their own code of ethics. It's not clear in this bill whether or not the code of ethics of those professional bodies is assumed to be the code of ethics to which unethical practices is making reference, or whether....

The minister is saying yes, it is. I think it would be useful for the purpose of the bill, considering that we've got 15 different statutes -- and perhaps they're in the

[ Page 8420 ]

source bills; I haven't gotten through all of those yet -- that the code of ethics of that professional body will be paramount. But to me that isn't made clear here.

I'll be very curious, when we get to committee stage.... When we talk about professional misconduct and appropriate circumstances, that's another thing I'm not sure who determines. For example, there are ten things that any of these 15 governing bodies are under obligation to follow through on. We have something like: "...to require registrants to provide to an individual with access to the individual's health care records in appropriate circumstances." I don't see appropriate circumstances defined.

I don't see who's going to be setting that definition and whether it will be the minister, the minister's office or that governing body deciding what the appropriate circumstances are. If the governing body is setting its own code of ethics and appropriate circumstances, is there some kind of review or appeal process to ensure there's some kind of consistency? I'm not sure.

I think the big difference between this bill and what the opposition would have brought in is the fact that the opposition believe that the answers to our problems lie with the public. So we allow the public to come forward in the decision-making process, and government monitors that and safeguards the general public interest. But government doesn't drive the process of solving the problem, the public does. The only role of the government is that when the public process comes through with decisions and solutions, government ensures that those are reasonable, fair solutions that can be implemented in a reasonable manner. To me that is the fundamental difference.

This bill puts enormous control over all 15 governing bodies into the hands of the minister. We have one-third of the representation directly appointed by the minister. We don't know to what extent the governing bodies will have input regarding those members. Although there are fixed terms of office for those representatives elected to the governing body, in my reading of the bill I haven't seen any fixed terms for the appointments by the minister. In the absence of fixed terms for appointees, it seems to me that there's a real opportunity for those people to become the controlling members of the governing body. Under the

section that deals with optometrists -- that's hidden on page 55 of this deluge of legislation here -- we see that the

section talking about the composition of the governing bodies says: "The minister may appoint 3 persons who are not optometrists to be members of the board." Then it says: "There must be 6 optometrists elected to the board under the bylaws for a term of 3 years." So those that are elected have a fixed term of three years. But I don't see a defined term for the appointments that the minister is going to have. In the absence of a defined term, we can imagine a situation where one-third of the board has been around for awhile -- let's say they've been on for five or six years -- and six new ones come in.

It's obvious that the advantage is going to be with those who've been on the board longer. To me that is unfortunate, because those people who have been appointed without fixed terms are not members of the general public; they're direct ministerial appointments. That is unfortunate because it would be useful for those professions to be able to canvass from the public lists, or whatever the minister deems acceptable. Then we could debate the process.

At least we would have a public process that would be a lot more advantageous to the operation of the profession than having the minister move in and centralize control by having people appointed.

Some of it gets a little bit outrageous in terms of ensuring that the minister has the one-third representation. For example, when we talk about the sections that deal with registered physiotherapists, massage practitioners and chartered physiotherapists.... I should say at this point that the one thing that is really good about this bill is that it recognizes many more professions than before, and it's about time.

Interjection.

J. Tyabji: I don't know that it's recognized. In this one we've got the definition of profession being enlarged.

Hon. E. Cull: They're all recognized now, legally.

J. Tyabji: The minister is saying that they're all recognized legally. What I'm trying to say is that in the statutes we've got enlargements of the

definitions of the professions in each section. From my reading of it, that gives the denturists, massage therapists and others more protection under the legislation.

Hon. E. Cull: No.

J. Tyabji: The minister says no. Okay. That's funny, because in my riding I've been canvassed by denturists and massage therapists who've been saying that they wanted to be included in the

definitions of professions under the statutes as they exist. And my reading of it is that that's what they've finally gotten.

Interjection.

J. Tyabji: The minister says no. Well, then, I guess I'll have to go back to....

The point I was getting to is that the governing body under the Physiotherapists Act, one of the later statutes dealt with here.... We have a Council of Physiotherapists and Massage Practitioners composed of two persons elected by members of the chartered physiotherapists' association under

part 1, two persons for the registered physiotherapists under

part 2 and two persons under

part 3, which is the massage section. Three persons are appointed by the minister. When you go through it further to see the constitution of it, you see that with the chartered physiotherapists you want to make sure one of the three is....

Hon. Speaker, I'm the designated speaker for the bill -- I notice that the green light is on.

Deputy Speaker: Thank you, hon. member. Please continue.

[ Page 8421 ]

J. Tyabji: As I was saying, for the chartered physiotherapists we see the members of the council elected under subsection (1), where two persons are elected, and one is appointed by the minister; in the second one, registered physiotherapists, two members are elected under subsection (1), plus the one appointed by the minister; and under the massage section, two are elected, and one is appointed by the minister. So the drafting of the bill is ensuring that it's not good enough to have three of the nine appointed by the minister; it has to be one for each of these three sections.

I can't find it right now, but there is also a

section that determines the composition of that governing body: some of them have to be from outside the lower mainland. I thought that was interesting. I haven't had enough time to research what the representation by that profession was, but I would assume that if the profession wanted to ensure they had a governing body representative of areas outside the lower mainland, they would do it through their annual general meeting -- or when they made recommendations to the minister for appointments to the council. So I thought it was interesting to see that even that had been legislated.

There's not going to be any allowance for too many people from the lower mainland to be represented on that governing body.

Under the Nurses (Registered Psychiatric) Act, we see some interesting changes to the composition of the board. Officers and directors are elected and comprise two-thirds of the board; and persons appointed by the minister comprise the other one-third -- or in this case it could be more than one-third, if it turns out that the nearest whole number is over one-third and doesn't divide. Then it says: "The board, if authorized under the bylaws, may appoint (

a) a person to fill a vacancy..." or "no more than 2 non-members of the association or one student member of the association in substitution for members elected under subsection (1)(a)." It's interesting that that has been added; it's very different. The way in which they can do that is a departure from the other governing bodies. The board has the ability to appoint instead of elect. I'm sure we can get into that in a little more detail in committee stage.

That more or less sums up some concerns that we have. The bottom line is that it's very unfortunate to have something of this magnitude come forward with so little time. Given that fact, there's no way on earth that we could know the implications of these things for all the different professional bodies being affected. That's unfortunate.

We have a problem with the lack of accountability in the reporting process, when powers that are given are being exercised. We don't have a problem with the powers being given, because we recognize that sometimes there are circumstances where that's necessary, but there should be an accounting process. There should be an automatic process and an appeal process other than litigation -- something that's less expensive than litigation for people who have been subject to extraordinary action because of public safety concerns.

With that, I look forward to committee stage of the bill.

G. Wilson: I'm pleased to take my position in debate on Bill 71. If ever there was a bill that needs a committee stage, this is the one. Clearly the intention of second reading is to discuss in principle what the government is putting forward with respect to a particular bill. A bill of this magnitude and size -- it is 77 pages long -- has clauses that affect 15 different groups within the province. It talks about various rules and regulations that will apply to self-governance and self-administration of 15 health care professionals' associations. We are clearly going to have to look at the detail and specifics of this bill carefully in committee stage.

I found it interesting that, with the remarks put forward by my colleague for Okanagan East, second reading almost became committee stage -- with direct intervention and interaction from the minister, almost bypassing the Chair, to exchange views and ideas on what was intended and what was and wasn't meant.

I don't intend to take a long time on my comments in second reading, because this bill is clearly one that is looking after the interests and objectives of health care professions in this province. It does establish, without doubt, a regulatory authority. Within that regulatory authority it does provide that one-third of the members are not members of the professions that must be regulated under this act. Philosophically, in principle, I think we would agree that that is a desired factor. It does require some reporting of these agencies to government.

I tend to agree with the analysis raised by the member for Okanagan East with respect to the enhancement of powers of each of the regulatory authorities. I think that they are substantial in some instances, especially with respect to the investigation of practice by members within their profession and the empowerment that is given with respect to those members where, in appropriate circumstances, there is an opportunity to impose limits on the practice of a member of the profession pending the hearings that may take place as a result of some form of charge being laid or brought against one of those members.

[4:45]

In principle, it's hard not to support this bill. I think all of us would like to see a greater degree of authority in the provision of regulatory and investigative powers being given to the 15 health care professions, to provide an opportunity for them to have some form of control over.... I don't like the term "policing," but there's certainly some kind of assessment, review and evaluation -- a better term -- of the individuals who make up the professions.

In principle, I think we can support this bill, and having had an opportunity -- as brief as it has been, given that this bill was only tabled a few days ago, and it's a substantial bill.... In the last two days, we have had an opportunity to talk with many of the health care professions. Quite clearly, we found there was an opportunity for those professions to have had input into this bill. To that extent I think we can support it.

We do have concerns, and those concerns were clearly articulated in the comments by the member for Okanagan East. I think we need to serve notice to the minister -- as I understand we are going to try to

[ Page 8422 ]

conclude this portion of the debate by 5 o'clock -- that we require a relatively extended block of time for Bill 71 in order to go through the detail of this in committee stage. To us on this side of the House, many aspects of this bill are not clear and we need clarification.

In principle, we can support it. We believe the bill has been drafted with considerable consultation, and to that extent we are supportive of the government's action. We do, however, believe that it would be nice, now that the bill is before us, if there were a longer period of time given for reflection and review, and for reconsultation with the various health care professional agencies in order for them to make sure that what is included in this bill is what they thought they were asking for when their submissions were made. With that, I would take my seat and look forward to committee stage on this bill.

L. Fox: I am pleased to rise and speak on Bill 71, the Health Professions Statutes Amendment Act, 1993.

In her opening statements, the minister suggested that this had received considerable consultation and that it was supported by all the associations contained within the act. That's partially true, but it is my understanding that while there has been consultation with all of these associations, the consultation was a very speedy process, it was not in depth and it did not reflect all of the concerns of the respective associations. Bill 71 was never intended to come before this sitting of the Legislature. It's only because of the delay and the fact that the Legislature is still sitting that we see this bill.

It was sped up by the minister because she saw an opportunity to bring this in during this session instead of a later session. But when this was initially drafted, it was not intended for this session at all. What bothers me substantially about the 77 pages of legislation, with 66 clauses, that is before us is that it was introduced two days ago in the House, and here we are today speaking on second reading.

In the minister's opening statement, she more or less led us to believe that this was an initiative by all of these associations. I know that the minister was lobbied by some associations for this legislation, but that is not true of them all. Let's not pretend that this is an initiative of all 15 associations. This is an initiative of the minister. There's nothing at all wrong with the minister seeing an opportunity to bring forth legislation to improve the operation and regulation of colleges. That in itself is commendable. But we shouldn't try to suggest that this is an initiative of all the associations; it's not.

I personally have no difficulty with laypeople being placed on boards. It serves the public's best interests to have that. But many of the concerns of some of these associations are around that aspect. They have asked the minister that those particular board members who are appointed be phased in; it should not be an abrupt change -- although I recognize that clause 65 is a transitional clause.

In reading the transitional clause, I can only hope that is reflects the fact that there will be a phased-in transition and an opportunity for communication between those respective associations and the minister in setting up that transitional period. The clause appears to say that, but given the limited time we have had to research this, I haven't been able to get a legal opinion as to whether or not my suspicions are correct.

That's one of the problems. This legislation deserves good opposition, but when you bring in the number of bills that this government has in the last four weeks, there's no way an opposition can come forward in two days and give a good, honest critique or constructive criticism of a bill of this size. So what happens during these debates is that we try to presume what clauses mean; we try, in our own capabilities, to understand what the intent of the legislation is; and we get into a situation where we're not constructive.

The opposition ends up trying to figure it out, because it hasn't had the opportunity to consume everything within this legislation. We end up trying to figure out what clauses mean as we stand, rather than having the opportunity to do the research necessary to give good, constructive criticism.

One of the reasons why I suggest that Bill 71 was not intended for this sitting is that it impacts back on Bill 55. I suspect that we will have to see some amendments to harmonize Bill 55 with Bill 71, because there's an overlap there. I perceive that there will be a need to amend Bill 55 during committee stage, and we only had second reading yesterday or today. I'm not sure now which day it was; so many different pieces of legislation have come before this House in an ad hoc way that it's very difficult to remember what day you debated which bill. In any case, in reading both of these bills I perceive that there will be a need to amend 55 to harmonize it with 71.

There's no question in my mind that this was rushed through. It was not intended for this sitting of the Legislature, but the minister seized on an opportunity to force it through in a way that we've seen with all kinds of legislation that has been brought into the House. Last night the Forests minister caused the Speaker extreme difficulty because of his arrogance in trying to call second reading on

an act that was not agreed to before the evening sitting. The people of British Columbia deserve more than this. They deserve more than having 77 pages of legislation laid on the table two days before second reading stage, which prohibits both opposition parties from looking at it in a constructive way and from giving their thoughts in a constructive way and looking at amendments to help what the minister is intending to do.

Because of the haste of this legislation, the minister is, I'm sure, going to bring in many amendments at committee stage. She had this drafted in such haste that it will be like many other bills that have been tabled in this House -- full of error and problems concerning the flow from one act to another. I'm sure we'll see amendments in the same light that we've seen amendments to many other bills. In principle the Social Credit Party will support the bill.

I have no problems with the principle of the bill, but I certainly have problems with the process and also with the arrogance with which this government treats the opposition, and therefore the people of British Columbia, by forcing legislation to come to second reading two days after it is tabled in the Legislature.

[ Page 8423 ]

Hon. E. Cull: Both of the opposition critics have spoken about the shortness of the time between first reading and second reading. I acknowledge that it has been a very short period of time, and I'm just going to take a second to explain why.

Originally, this bill was intended to come forward next week. As a result of discussions that took place this morning between the critics and myself around personal needs related to the opposition critic and her commitment to a woman who is giving birth