ISSN 0542-5492 Fourth Session - Thirty-First Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE ON PRIVATE BILLS 29 Elizabeth 11 Published under the authority of The Honourable Harry E. Graham Speaker WEDNESDAY, 23 JULY, 1980, 2:00 p.m. Printed by The Office of The Queen's Printer. Provmce of Mamtoba

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

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

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

Vital Fort Rouge Wolseley Party NDP PC PC NDP PC NDP NDP PC NDP NDP PC NDP PC NDP NDP PC PC PC PC PC NDP PC PC NDP PC PC PC lnd NDP PC NDP PC PC PC PC PC NDP NDP PC PC PC PC NDP PC PC NDP NDP PC PC NDP PC PC NDP NDP NDP Lib PC

LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON PRIVATE BILLS Wednes day, 23 July, 1980 Time - 2:00 p.m. CHAIRMAN - Mr. Jim Galbraith (Dauphin) MR. CHAIRMAN: I bring this committee to order. We're dealing with Private Bills. At the present time we will deal with Bill 65. Is it the wish of the committee we go page- by-page and stop wherever there's concern? (Agreed) BILL NO. 65 THE REGISTERED NURSES ACT MR. CHAIRMAN: Page 1 pass - Mr. Sherman. HON. L. R. (BUD) SHERMAN: Mr. Chairman, first of all there are a considerable numb er of amendments.

They've been prepared by Legislative Counsel; they have to be distributed and moved. And they start right on Page 1 of the bill. Maybe we could go through those. MR. CHAIRMAN: Mr. Kovnats. MR. ABE KOVNATS: Mr. Chairman, I. MR. CHAIRMAN: Just before we start, I've been asked by our recording staff that every member make every effort to speak as di rectly into the mike as possible as apparently these mikes do not pick up voices as well as they should. Now what is the proper procedure? Do you want to be called by your name or do you want to be called by your constitutency. MR. SAUL CHERNIACK: Mr.

Chairman, may I suggest we do it

section by section. lt will be just as fast as being interrupted, and in that way we won't hop around. Secondly, I think com mi ttee has accepted, from time imm emorial, that you could address somebody by name or constituency. I think you should do wh atever is more convenient for you. MR. CH AIRMAN: Ok ay. Sec tion 1(

a) pa ss; 1(

b) pass; 1(

c) pass; 1(

d) pass; 1(

e) pass - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT clause 1(

e) and (

f) of Bill 65 be struck out and the following clause be substituted therefor: (

e) Memb er, un less the context otherwise requir es, means a person whose name is entered in the register; (

f) Mi nister, means the mem ber of the executiv e council responsible for the admin istration of the health matters in the province. MOTION presented. MR. CHERNIACK: Mr. Chairman, just a minor point. I think that the motion should say Clause 1(

e) and (

f) of

Section 1. I assume, Mr. Balkaran will correct it. MR. BALKARAN: lt says Clause 1(

e) the one that refers to the section. MR. CHERNIACK: Of course. I'm sorry. See, here I was trying to be helpful and I wasted time. Sorry, Mr. Chairman. QUESTION put, MOTION carried. MR. CHAIRMAN: 1(g) - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move; THAT sub-clause 1(

g) sub (ii) of Bill 65 be amended by striking out the word "programs" therein and substituting therefor the word "problems". MOTION presented and carried. MR. CHA IRMAN: 1(

h) pass; 1(

i) pass; - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move; THAT Clause 1(i) (

j) of Bill 65 be struck out and the following clauses be substituted therefor: (

i) Register, means the register established under

Section 7. (

j) Registered Nurse, means a person whose name is entered in the register and in one of the rosters referred to in

Section 7. MOTION presented and carried. MR. CHAIRMAN: 1(

k) pass; 1(1) pass; 2 pass; - Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, I ha ve an amendment. This deals with the point that was discussed at the earlier meeting dealing with the objects of the association. So while the amendment is being distributed let me introduce the subject. The Licensed Psychiatric Nurses Bill, as I recall it, set out the objects of the RPN, again, Mr. Chairman, I think I gave you a misnomer.

I'm talking about the Registered Psychiatric Nurses, the RPN 's, which set out objects of the association, that would be Bill 66 , and I not only liked what they said but also wanted to add a subsection. The RPN's indicated that they, I bel ieve they ind icated they would accept my sugg estion and when the RN's objected to the statement of objects in their Act, the RPN's said, we can live with it but if there's good reason for the RN's not to have it, then that good reason might well apply to them. So I want to raise the point. Bill 66 sets out the objects of the association which I wish to read, Mr.

Chairman: 147 (

a) To promote and maintain an enlight ened and pr ogressive standard of psych iatric nursing;

Wednesday, 23 July, 1980 (

b) To assist in the promotion of mental health and the prevention of mental disorders; (

c) to promote the maintenance of properly constituted schools for the preparation of qualified psychiatric nurses; (

d) to co-o perate wit h other persons or organizations interested in the promotion of mental health and the prevention of mental illn ess; · (

e) To maintain the eth ical educ ation on practising standards of its members at the hig hest levels. I wanted to add an (

f) as follows: (

f) to carry out its activities in such a manner that the best interests and the protection of the public are ensured. Now, Mr. Chairman, the objection as I understood it, posed by the solicitor for the registered nurses, was that setting out the objects of the association might in some way create a problem of litigation on appeals from decisions made by the board.

Now it's not for me to elaborate on their argument, but as I understood it, they were concerned that decisions made by, say, the discipline committee or the board being reviewed by another authority - that could be the L.G and C. or it could be a court - having the objects before them, should go back to the objects and consider whether the decisions made were carried out with the objects in mind, and they had concerns that this could create problems. Mr.

Chairman, the more it concerns them that setting out the objects in the Act could create problems, the more I feel justified in pushing that the objects be set out, because the objects which I read, which the psychiatric nurses said they would like to have, I think are the finest objects and none that anyone could question. So the fear expressed is that they could be misused in some way - by whom? - by the authority like the Lieutenant-Governor-in­ Council, or a court in appeal. I would want them used, Mr. Chairman.

I'm just not saying that they should be in the bill just as a token statement of what is believed to be the purpose, but they should be part of the bill so that whoever deals with the activities of the association under the bill would be reminded, as would the association itself, what their objects are. I say that, Mr.

Chairman, knowing full well - I think the latest account I heard - th at there are some 80 professional or pseudo-professional organizations in Manitoba, that's a numb er that was way beyond what I thought, and also we were told that there is only one that the solicitor for the RNs knew of that had a statement of objects, and this RPN one would have been the second. Nevertheless, Mr.

Chairman, I've had enough experience, which is not that great, but sufficient, with various professional associations, to feel that there are occasions when the delegated authority within that organization might forget the objects or might put the interests' of the association, as such, ahead of the objects as such.

I think that, just like we have laws that apply to one person but are made general for all, like criminal laws - we don't expect people to break laws but we make laws because on occasion someone does - by that same token I would think that all professional associations should have objects set out in them. Now, Mr. Chairman, my first thought was that 1 should set out described objects for this bill, much as those that were prepared by the RPNs, varying them of course to relate to the general field of nursing rather than psychiatric nursing and mental health. My second thought, Mr.

Chairman, which was the most persuasive one - and the evidence of that is that you have it before you - is that I would take the word of the registered nurses for what their objectives are, and I took the publ ication of the Act and the bylaws of the Manitob a Association of Registered Nu rses, and if you will look at the amendment which I have distributed, I will read to you a portion of their statement on Page 2 of it.

Under Definition of Nursing Practice they say: "Nur sing in its broadest sense is caring ." The practice of the profession of nursing is defined as those functions which, in collab oration with a clientele and other health workers, have as their objective promotion of health, prevention of illn ess, alleviat ion of suff ering, restoration of healt h, maximization of health capabilities. Mr. Chairman, I'm really not quite satisfied with this as a statement of the objects of an association. I would much prefer something along the lines of the RPN.

But to avoide a debate, which I don't say I will avoid it, but to confine the debate, I took the nurses' own words and put them into the motion which I am now about to present. Well, we'll hear what the objections may be to that, but I believe that it is advisable, and there to remind everyone that the Legislature has given extraordinary powers to a group of people, trained , experienced, dedi cated people, to operate their own organization, to have discipli nary powers, to have control powers, to have reserve of title, and we have learned, Mr.

Chairman, during the briefs that were presented, that employer organizations, hospitals, such institutions, accept the fact than an RN is the kind of a person they want working for them. So that just reserve of title is not descriptiv e enough of the power which we are giving to the registered nurses, and which I agree with. I agree that they should have that power and I agree that they should exercise the power in the light of the high est objectives of what is best for the public interest. That's why I've taken their wording and propose to add it at the end of

Section 2. I would be glad to hear comments from drafters as to whether that is the best place for it, or whether it should be in another place. But the objective I think is clear, and I thought that where the

section reads: "That the MA RN as constituted, is hereby continued a body corporate, and has the capacity, rights, powers and privileges of a natural person", and I suggest the foll owing additions "and has the objective, in collaboration with the clientele and other health workers, of promotion of health, prevention of illn ess, allevia tion of suffe ring, restoration of health and maximization of health capabilities". That's the end of the motion. Mr. Chairman, I'd just add to that. If it belongs more suitably in some other part of the bill, I have no quarrel with that. 148

Wednesday, 23 July, 1980 MR. LAURENT L. DESJARDINS (St. Boniface): Mr. Chairman, through you, I'd like to ask a question of Mr. Cherniack. it's a question at this time. Why is this needed when I see pretty well the same words on the first page under (g), which is the definition of a nursing practise. What would be achieved by this? Or why does the member feel that this is necessary? MR.

CHERNIACK: Because I feel that a definition of what is nursing practise does not set out the goals of the association. lt is just a definition and what the dif ference would be is that when one comes through the Act and one talks about what is nursing practise or the practise of nursing, one will then go back to the definition and see what they mean. But I don't think this would apply if, for example, there's a discipline im posed on a member for something other than professional knowledge or capability.

Tha t whoever reviews that should be reminded, not of what is a definition of a nursing practise, but rather what are the objects of this association? And when the Lieutenant-Governor-in -Council has to deal with regul ations, it shouldn't have to go back to what is the definition of the nursing practise, it should go back to what are the objects of the association, so that when they deal with the regulations that are presented, they will be reminded of what the purpose of this is, which is quite di fferent from the objects of any ordinary, incorporated company.

Where you look for powers, not objects, when you look at a company lik e, you know, General Motors, or the ABC car repair company, it's quite di fferent; and that's my point. MR. SHERMAN: Mr. Chairm an, I certainly agree with Mr. Cherniack 's motiv es and objectives in ensuring that the goals and objectives and ethics of the nu rsing pr ofession are made known, are enshrined and are circulated but I can't accept the suggestion that they should be enshri ned in legislation having to do with the establishment or authorization or re-enforcement of the association in this case, as a self-governing professional body.

The fact of the matter is, Mr. Chairman, and I know we're not dealing with Bill 66 , but it's germane to the point so I have to mention it. That particular clause will be the subject of an amendment when we come to Bill 66, which amendment will propose that the objectives of the RPN Association be removed from their bill.

The basic legalistic argument for are not enshrining objectives in a piece of legislation of this kind is that they do necessarily deal with ideals and are, therefore, subject to di fferences of perspective and intepr etation which make them particularly vul nerable, in the view of the best professional advice that I have been able to muster, when exposed to examination during the judicial process, so we don't think that they should be subject to review by the courts. Mr.

Chernia ck read the definition of nursing practice from the MARN handbook, by-law book, but I think he would concede that probably to spare the commit tee the ti me, he didn't read the entire Statement of Nursing, which is contained therein, and which does outline those ideals and objectives of the nursing profession. Further to that, Mr. Chairman, the MARN has a code of ethics which is consistent with the guidelines that were develo ped and laid down by the government for self-governing associations. Their code of ethics outlines the very objectives and very ethics to which Mr.

Cherniack refers and we don't feel that it is necessary to incorporate them in the bill. Therefore, Mr. Chairman, I will not be supporting the amendment. MR. CHAIRMAN: We have a motion before the committee. All those in favor? Mr. Cherniack. MR. CHERNIACK: A couple of poin ts. The Statement of Nursing that Mr. Sherman referred to, by all means, let's includ e it. I saw it as more descriptive than a statement of principl es and that's why I left it out, but his pointing out that I omitted it, just suggests to me I should include it, because that does not change the point of view where we have separated, Mr.

Sherman and I. I believe it belongs for the reason he doesn't want it and let me just spell out: I believe it belongs because if there is a di fference of perspective and

interpretation, which seems to concern him, I would rather that perspective and in terpretation were applied by an appeal body, and I think that would be either a court of the Lieutenant- Governor-in -Council, in the light of the changing circumstances of society and of the practice of nursing, and we've talked about changing circumstances. I would rather rely, Mr. Chairman, on the review process to bear that in mind, than not to have it before them, because the great fear I have is the court would say, "Well, here's the legislation.

The legislation says that this association" - I would like my argument to apply to all, not even just the three that are before us now - "the Legislature says they can pass by-laws on their own and they can pass regul ations, subject to the appr oval of the Lieutena nt-Governor - in-Council, " and having that that authority, I would not like a review authority to close its eyes to the objectives of the association, which are primarily to serve the public, and that's why I say I think we have a clear di fference of approach. I believe it belongs for the same reason that Mr. Sherman doesn't want it in.

He does not want the dif ference of perspective and

interpretation applied , I do want it im pli ed. If I int erpret him correctly, I think that is a very clearcut di fference. One other point, he says the nurses have a code of ethics. I haven't found it. Although it may well be in this pamphlet, I haven't seen it, nor is it in the bill, so I don't know what it is. I think that if there is a code of ethics, let's put it in the bill so it's known, so the public knows it, so review authority knows it. MR. CHAIRMAN: May we have this motion before the floor? A COUNTED VOTE was taken the results being as follows: Yeas, 2. Nays, 6. MR. CHAIRMAN: I declare the motion lost. 2 pass.

Part 11, Board of Directors, 3( 1) - Mr. Kovnats. MR. KOVNATS: I move 149

Wednesday, 23 July, 1980 THAT subsection 3( 1) of Bill 65 be struck out and the following subsection be substituted therefor: Board of Directors. 3( 1) The affairs of the association shall be managed by a board of di rectors, at least 25 percent of whom shall be persons who are not members of the -association, and of the 25 percent who are not mem bers of the association, two shall be appointed by the Lieutenant-Governor-in-Council. MR. CHAIRMAN: We have a motion before the floor. Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, this I believe is an im provement over the original.

The only point is, there could be five, there could conceivably be 10 people who are not members of the association on the association. You see, the way it's set out here, the association is self-regulating with all the powers granted to them, nevertheless, will by the way this bill is drawn and subject to those powers given to the Lieutenant-Governor to appoint two, as is proposed, they will have control over all the other lay persons that will be appointed. Mr.

Chairman, I don't see the sense to that. lt seems to me that if you're going to have lay people on it, those lay people should in some way be representative of the community, maybe various segments of the com muni ty, maybe vari ous segments of the consumer public, the clienteles they would be referred to, but who is best able to judge as to what their qualifications or their constituency should be? And I don't think it should be the body itself. I think there are other ways of determining what is a constituency.

One way would be to name the various constituencies, like Council of Social Agencies, Unit ed Fund, the Ma nitoba Health Organization - I don't believe they should be on it, but that could be; it could be a union - I don't believe it should be on it, but it could be - that's one way of doing it. The other way of doing it is what is proposed in this amendment where it says "two shall be appointed by the Lieutenant-Governor". So here the Lieutenant-Governor says, well we will at the time and from time to time bearing in mind what we know in the future, determine two of the members.

I think that the two can be very meaningful if all we have are four lay people, but it can be meaningless if there are 10 lay people. There's no reason why there shouldn't be a board of 40, of whom 10 are lay people, and only two appointed by the Lieutenant­ Governor-in-Council, I think, loses the essence of what is intended.

Therefore I would like to move an amendment to the motion at this stage - I'm not moving it formally - but what I'd like to do is to replace the figure "2" with the words "the majority." That would then mean, that regardless of the size of the board, and therefore regardless of the numb er who make up 25 percent of the board, that the Lieutenant-Governor­ in-Council will see that the majority of those people are put on.

Let me point out that the only other legislation I'm aware of dealing with compulsory requirement of lay people on a board is the Law Society one, and in the case of the Law Soc iety the la y people are appointed, not by government, not by politicians, not by a constitue ncy that's describe d as I have attempted to describe constituencies, but appointed by a committee and the committee, as I recall it, is made up of the Chi ef Justice of Manitoba, the Chairman of the Mayors and Reeves Association, or Chairman of the Munic ipalities of Manitoba, and I think the Chairman of School Trustees - I'm not sure of that - there are four in any event, who are named officers, who are not on the board but who meet as the committee and appoint the board, and that to me makes sense.

But if you don't want to go through that mech anism, and if the government is prepared to accept the responsibility of the appointment, then don't make it meaningl ess by saying the government will put a conduit there, which is suggested to me by putting on two lay people so that that conduit will be able to report back and forth, but rather in the true sense of appointing members who will be dedicated to work on behalf of the board, that they be lay people and that their selection be that of the Lieutenant-Gov ernor-in-Council, not as a conduit but as representatives of what I call the consumer public.

So I think that instead of two, it should be the majority, so that we know no matter how the board expands, the majority of the lay people will be appoi nted by the government - I thought maybe to say 13 percent of the 25 percent - wwll, in any event I thought that the wording would be best served by saying "the majority." MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, I'd like to ask Mr.

Cherniack whether he would be satisfied with a change in his proposed amendment that would make it read "no fewer than one-half." In other words, "Of the 25 percent who are not mem bers of the associa tion, no fewer than one-half shall be appoin ted by the Lieutenant-Governor-in-Cou ncil." MR. CHERNIACK: Yes, that has the same effect I believe, maybe a dif ference of a quarter of a person. MR. SHERMAN: Then I would certainly be willing to suggest to him that he frame an amendment and I'll vote for the amendment. MR. CHERNIACK: Mr. Chairman, I'd be happy if Mr.

Balkaran will frame the amendment and anybody can move it. I don't look for the credit, but I'm willing to .. MR. BALKARAN: Wel l, Mr. Chairman, the amendment as I understand it, would simply strike out the figure "2" of the proposed amendment . MR. SHERMAN: And make it one-half? MR. BALKARAN: Mr. Chairman, . MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: For simpli city's sake, maybe Mr. Kovnats would be willing to reword his amendment so we don't have an amendment to an amendment. 150 I

Wednesday, 23 July, 1980 MR. SHERM AN: There's a point here, Mr . Chairman. Mr. Cherniack says it's the same thing, but it isn't the same. Let's say you're looking at four lay members. His amendment said "a majority," well, two would not be a majority of four, but it would be one-half of four. MR. CHERNIACK: I said I'm not dealing with pieces of bodies. MR. SHERMAN: You would only be dealing with pieces of bodies if it was an uneven number. So you take an even number and that's why I'm suggesting no fewer than one-h alf and the Legislative Counsel I think would suggest just the term one-half. MR. CHERNIACK: Fine.

I see the sense to it. I accepted it from the very beginning. MR. CHAIRMAN: Okay, we have an amendment to the amendment. Ca n we have subsection 3( 1) as amended? Mr. Balkaran. MR. BALKARAN: Mr. Ch airman, the amendment would strike out the fig ure "2" of the proposed amendment of Mr. Kovnats in the first line thereof and substitute therefor the words "no fewer than one-half". MR. CHAIRMAN: Agreed? MR. CHERNIACK: "No fewer than one-half". MR. CHAIRMAN: 3(2). Mr. Kovnats. MR. KOVNATS: Mr.

Chairman, I move: THAT subsection 3(2) of Bill 65 be amended by adding thereto, immediately after the word "election', in the second line thereof the words "other than the members appointed by the Lieutenant-Governor-in- Council''. MR. CHAIRMAN: Pass? Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, yes, I agree with that amendment. I have another point to raise on this subsection and that is the number of the board. Mr. Chairman, I think we were told that there are 17 members of that present board.

According to my reading of the by-Jaw - my note says to be repealed, I'm not quite sure where I got the idea that that would be repealed but in any event it would have to be repealed - but as I see it the provision that had been made provided for something like 20 but I want to raise the question of the number.

I believe that an organization of 8,000 people, all members of the same one professional body, is inadequately represented by a small board unless it becomes an exclusive, elite power and I believe - and again I speak from some experience, I speak from my knowledge of the professional society of which I am a member - that too few a number creates too much of a happy clique and I don't suggest that that is the case with MARN because I don't know MARN but I'm saying that in principle.

There ought to be some sort of protection to ensure that there's a large enough board that is likely to be more reflective of the broad base of 8,000 members, plus - I hope it will grow and not shrink - and therefore I leave it open for the moment as to what is an optimum number as the minimum. My own feeling is that 40 is not too unwieldy and, if it were, I would rather opt for an unwieldy than a all too powerful small group.

You know that government is most readily run by one person, all you need is one dictator and there's efficienc y and the more people you have in the Legislature or in the committee such as this, the more lik ely it'll take longer to come to decisions but I think it's good that they should.

Therefore, my suggestion is that after the word "board" in the first line, we should say "shall be at least" and then put a number opposite it and I would think that the number should be a fairly good but workable size but not so small as to have the exclusivity that a very small group has. lt may create problems for holding meetings but I think that in the interests of democracy - and that is what we're talking about here and I'm talking about the democratic right of the members - I don't that there should be too small a group.

A board which has certain matters to deal with that could be settled by a fewer number, can serve by having a committee of the board of a smaller numb er deal with any specific matter. But the board itself which meets from time to time dealing on behalf of a membership which may not meet more often than once a year should, I think, be more reflective of a larger base and that's why I'm not making the motion until I can get some kind of discussion as to the number and suggest that that should be in the bill. MR. CHAIRMAN: Mr. Filmon. MR. FILMON: Thank you, Mr. Chairman.

If we set a minimum number of members for the board, what would happen in a situation where today we have 8,000 members of MARN and some time in the future because of changing responsibili ties, let's say some other technical or technological discipline takes on some of the responsibilities that nurses formerly had and they become say, perhaps more exclusive in a sense and there are only 4,000, then it req uires a legislative change to reduce the size of the board because it may not be practical to have a board twice as la rge as you need under those circu mstances. lt seems to me that ther e are problems in setting a mini mum numb er or a maximum number, for that matter.

MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Mr . Ch airman, I have two responses. One is that by law the Legislatuve meets onc e a year at least and he now has enough experience to know that you can bring matters into the Legislature. You can't always get them out as easily as you can put them in but a lot of it has to do with how early you bring it in. So I don't see any real problem. I don't see that an organization is stifled if it has a large board and 4,000 members. But the other poin t I would gladly make, a concession I would gladly make, is that the number shall be determined by resolution.

In other words, by the Lieutena nt- Governor -i n-C ouncil or by concurr ence of the Lieutenant-Governor -in -Council. 151

Wednesday, 23 July, 1980 That creates a much easier way of dealing with a problem rais ed by Mr. Filmon and still the Lieutenant-Governor-in- Council may, and would, be influ enced by the opinion of the board at the time of original and subsequent changes. Mr. Chairman, my point is that I think really the size of a board is a very very important ingredient of how an association functions and I think the Lieutenant-Governo r-in- Council and Mr . Sherma n has agreed that it will assume responsibilities of reviewing resolutions.

If it is felt that it's too much of a burden to come back to the Legislature to make a change where, in that portion where I'm making suggestions, then surely it's much easier to just go to the Lieutenant-Governor-in- Council and say, here's a new resolution and these are the reasons. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, I don't feel that it would be too much of a problem to come back to the Legislature and make a change if necessary. That could be dealt with 'at a subsequent session through The Statute Law Amendments Act if we were only dealing with one item, such as that.

I think it's premature to fix the size of the board at this point in tim e. This legislation reflects a reorganization on the part of the association and I'm sure that if there is di scontent in the membership over the size of the board, whether too large or too small, over the communication between the board and the membership, or whatever reason, that the Mini ster of Health will hear from the membership about it. So I think that although there is merit in what Mr.

Chernia ck says, in the long run, in view of the fact that the MARN has indicated that they are studying now a method of representation that may well be based on a regional forma t of health regions or health units, or districts of the province, that it would be premature to prescribe firm parameters for the board at this point. If there are difficulties, it can be resolved after they have had a year or two to complete the reorganization in approach that they are going through as a professional association. MR. CHERNIACK: Mr. Chairman, I am not going to repeat myself.

There is no advantage to taking time when there is nothing to be accomplished. I want to correct the word "fix" used by Mr. Sherman. I did not suggesting "fixing" the number, I suggested putting in a minimum numb er. That would not fix it, that would make it flexible beyond the minimum and I thought that possibly the easiest way would be to say we can fix the minimum as being the present number so at least we know it doesn't shrink. However, it's okay, you know, Mr. Cha irman, I have lost votes before.

I want to point out to the Mini ster that by-law, the Act, I'm sorry, not the by-law, the Act that we are repealing does have a formula, which takes into account each district association and does in fact set out the makeup and the number of the board. I called it a by-law; I'm sorry, I turned to the wrong page and I assumed I was dealing with a by-law of the board, which would be re-enacted by our bill , but we are repeal ing what I und erstand is the one existing requirement as to how the board is to be made up. And I now point out to you, Mr.

Ch airman, what I think might be a technical problem and that is that - it could be corrected, of course, by the fact that we have agreed to proclamation - but once we repeal the Act, then there is no requirement at all as to how many the numbers shall be and the new by­ law that is passed can go back to saying the board shall consist of five people.

So when I was saying that 17 are too few, we are even leaving that open, because the present requirement in the Act that we are about to appeal, and members, if they like, can count how many there are, says that the im mediate past president, the president, two vice-presidents, not three, a representative from each district association, and not more than 10 members at large, and then of course I think there is a conflict because it then says that there shall be three members of the board for the first 3,000 members and then one member for each additional 500 members, whatever that is.

So we are repealing what is the present structure of the board and leaving it completely open to the organization and our job, Mr. Chairman, is to protect the public and, secondly, the individual member. MR. SHERMAN: Mr. Chairman, I want to assure Mr. Cherniack that that will be watched with dil igence and if it becomes necessary and obvious that there should be some parameter established, a minimum or wha tever, that certainly we would be qu ite prepared to consider that in future adjustments to the legislation. But I think that it would be confining at this point. MR. CHERN IACK: Mr.

Ch airman, I just have to comment that Mr. Sherman, I am sure, is well aware that his assurance as to what will be done only relates to the time whilst he is Mi ni ster of Health and there is no gu arantee that he will be Min ister of Health in the futur e, even under a continu in g Conservative Government, because Cabi nets change. My concern is not to draw legislation bearing in mind who the people are that occupy the jobs, but rather the fact that the people may change from time to time and may not remember what was discussed or what was undertaken. MR. CHAIRMAN: We have

Part 11,

Section 3(2) as amended pass;

Section 3(3) pass;

Section 3(4) pass;

Section 4( 1) pass;

Section 4(2) - Mr. Kovnats. MR. KOVNATS: I move THAT Subsection 4(2) of Bill 65 be amended by adding thereto, immediately after the word "b oard" in the first line thereof the words "after due notice." MR. CHAIRMAN: Mr. Ch erniack. MR. CHERNIACK: Thank you, Mr. Cha irman. Of course this was a change that we have agreed to, but I think there is something else that has to be done and I want to suggest that the word "due", which is judgmental and open to

interpretation and a different perspective - I'm using the words used by Mr. Sherman in another connection - that it ought 152 I

Wednesday, 23 July, 1980 to say, and this is my suggestion, taking care of two things, both "due" and another important feature, that it should read: "after at least 30 days after copies of the pr oposal have been sent to all members".

What I have in mind is that not only should we decide what is "due" notice, as to whether "due" could be two days or 30 days, but I think we should provide that copies should be submitted to the members - again, I go back to the Law Society which does that - to make sure that people voting, especially 8,000 people scattered all over Manitoba and with a system with which I di sagree but still exists, of proxies, that people, before coming to the meeting, should know what is going to be dealt with at the meeting so that they can either make a special effort or shrug their shoulders and say it's not necessary.

Therefore, I would like to suggest that we set out the minimum number of days of notice and provide that copies of the proposal shall have been sent to all members. MR. CHAIRMAN: Mr. Balkaran. MR. BALKARAN: Mr. Chairman, I might point out that this amend ment was suggested by Mr. Cherniack in precisely those same words, that's why they are on the amendment sheets as they are now. MR. CHERNIACK: That's why I complimented you in doing it. Mr. Chairman, I am glad Mr.

Balkaran is even noting who suggested what, but the fact is that the reason we meet in committee is that we have another look at things and what I am suggesting is an additional precaution, which I think is advisable. The fact that I didn' t mention it before certainly does not in any way preclude my bringing it up now, or at third reading, if necessary. I would like to hear some reaction; I believe it is logical. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Would Mr. Ch erniack read the clause as it would read with his informal amendment in it. MR. CHERNIACK: I will, and I'm not too proud of this wording.

I am sure Mr. Balkaran can do a better job. MR. SHERMAN: Tha t's why I used the word informal, Mr. Cherniack. MR. CHERNIACK: Wha t I have written, or scribbled, "The board shall, after at least 30 days after copies of the proposal have been sent to all members, submit a by-law, or an amendment or repeal to the member. Now I think that is clear as to what I intend. MR. FILMON: No sooner than 30 days after, is that what you mean? MR. CHERNIACK: Yes, no sooner than 30 days after, and I mean after the copies have been sent out.

The members will have at least, say 25 days from the receipt of the copies before the meeting. MR. FILMON: Mr. Chairman, I am informed that is current practise with MARN and that it was their intention to put something of that nature in the by­ laws, as opposed to enshrining it in the bill, but if there is a feeling that it should be in the bill MR. SHERMAN: I'm agreeable, Mr. Chairm an. My colleagues are, of course, free to make their own decision on it, but I don't see any di fficulty with that. MR. CHAIRMAN: We have

Section 4(2). MR. CHERNIACK: Could Mr. Balkaran read to us the wording? MR. CHAIRMAN: Could you read the amend�d section? MR. BALKARAN: The amendment, as I understand it, Mr. Ch airman, would read, up to the word "board" in the first line, the following words and figures added after "at least 30 days after a copy of a by-law or an amendment, or repeal of a by-law, submit the by-law, or amendment, or repeal, made under subsection 1 etc." lt will involve almost a re­ write of the subsection. MR. CHERNIACK: Since I really don't like what Mr. Balkaran read to me I'd rather see a re-write.

I'm sure he can do a much better job that I have sugge sted here. Coul d we just leave that, Mr. Chairman, and come back after we've had time to deal with it? MR. CHAIRMAN: We have agreement here to leave that subsection and come back to it? (Agreed)

Section 4(3) pass; 4(4) pass; 4(5) pass; 4(6) pass; 4(7) pass; 4(8) pass; 4(9) pass; 5(

a) pass - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move; THAT

section 5 of Bill 65 be renumbered as subsection (1) thereof and that renumbered clauses 5( 1) (

f) be struck out and the following clause be substituted therefor: (

f) Prescri bes standards of volu ntary, continued nursing education for all persons registered under this Act. MR. CHAIRMAN: I didn't get quite that far yet, I was still on 5(a). 5(

a) pass; 5(

b) pass; 5(

c) pass; 5(

d) pass; 5(

e) pass; 5(

f) as amended pass - Mr. Desjardins. MR. DESJARDINS: 5( 1) (f). MR. CHAIRMAN: Oh pardon me, Mr. Desjardins. Oka y we'll have a new

section there then, 5( 1) (

f) pass. Mr. Chernia ck. MR. CHERNIACK: Mr. Chairman, we're now dealing with regulations which must be submitted to the Li eutenant-Governor. Mr. Chairman, I'd like to read into the record portions of a document given to us by MAR N, entitled Regulation 1, which is, as I understand it, is their proposed regulation which they propose to send to the Lieutenant-Governor for approval after this bill becomes law. 153

Wednesday, 23 July, 1980 And I will skip portions of it.

Section 2: Any person who furnishes such evidence to the board as it may require, that she (

a) is a graduate of a nursing program within Manitoba that has been approved by the board; (

b) is of good moral character; (

f) has successfu lly comp leted any requir ed refresher program pr escribed by the regul ations of the association. I pause there, Mr. Chairman, to indicate that these regulations, nor any I'm aware of, do not set out the standards of the programs that will be adjudicated on by the board, does not set out the principles on which they will make their decisions, and therefore we can have a comfortable feeling that regulations of this nature, this im portance, are subject to review by the Lieutenant-Gove rnor-in-Council.

In fact, if the Lieutenant-G overnor- in-Council accepts these regulations, it is still passing back to the body, the complete authority on setting out what program "has been approved by the board." So you know, it's almost unne cessary for the regu lation to be approved by the Lieutenant-G overnor-in-Council if indeed, all it does is to pass the ball back and say okay, whatever you approve will be satisfactory. And that brings me di rectly to Mr.

Ray Taylor's letter, which has been referred to, which is not part of the record, and I will not be presumptious enough to read the whole five-page letter into the record, which I think should have been done, because I think had Mr. Taylor been here it would be into the record, but it's not for me to decide. Mr. Taylor points out that the present Act has

Section 14, which Mr. Sherman referred to in the present Act, and he noted that it wasn't in the existing Act, makes provision that the board may di spense with compliance of the requirements for adm ission, on being satisfied that the person in whose favour a dispensation is made has acquired the same benefit kn owledge as if the foregoing provisions of this Act had been strictly complied with, that a nurse trained outside of Manitoba may be admitted to membership, if it is shown that she has had equivalent educational standards. And then a paragraph of Mr.

Taylor's letter reads: "I ndeed there is nothing in Bill 65 which would tell any mem ber of the publi c wha t qu alif ications are prerequisite to membership in MARN and therefore entitlement to practise as a registered nurse. Rather Bill 65 simply gives the board of MARN itself the power to make regulations, regulate the admission and registration of members and to prescribe the conditions of precedent to membership of persons applying therefor." The point I'm making - I'm leaving the letter now - the point I'm making, Mr. Chairman, is that the proposed regulations don't do that either. So here we find Mr.

Taylor saying but the bill doesn't show it, and I'm telling you that the regulations don't do it either, and that therefore we really have to fall back on one of the la st of the amend ments being proposed by Mr. Sherman as to the educational institutions. Without that we would really be no further ahead to be able to spell out to the public what are the expectations of the board, nor to any nurse coming from outside of Manitoba just what can she expect, because the regulations make a di scretional with the board; the Act says nothing. Therefore, I again, express my agreement with Mr.

Taylor that it is not a satisfactory way in which to deal with it. Having said that, I am not prepared to make a specific amendment unless Mr. Sherman ind icates a sympathetic approach to the concerns expressed by Mr. Taylor, and by me, in which case we could possibly work towards an amendment. But if he rejects the validity of bringing in an amendment, there is no use worrying about the wording of it, I wouldn't even bother. MR. SHERMAN: Mr. Chairman, three points, and there may be more. I may be misinterpreting some of Mr. Cherniack's concerns, but let me deal with the three that I identified.

First of all, I assume we are talking about 5( 1) (

f) and not talking about (

a) through (e). MR. CHERNIACK: No, I'm sorry, we're talking about 5( 1) , because it's really (a), because (

f) is only continuing education and I'm not concerned with that. MR. SHERMAN: Then that is an originating point for confusion, Mr. Chairman, because I thought we had passed (a), (b), (c), (d), and (e). MR. CHAIRMAN: No, we didn't pass 5( 1). MR. SHERMAN: So if Mr. Chernia ck is talking about the whole section, let me say to him that I was certainly concerned about the points that Mr. Taylor raised, I thought he made them very effectively and I pointed that out at the time that his letter arrived here.

I said to the committee that it was a very responsible presentation and it was imperative that it be attached to the material that every member of the committee had. I bel ieve that those particu lar concerns are addressed by the regulations of the MARN, which 1 don't have in front of me at the moment but I did have in front of me at an earlier meeting of the comm ittee. With respect to the standards of volu ntary co ntinuing nur sing educ ation , if Mr. Cherniack is sugg esting that that is really unnecessary in 5( 1) , I can't argue with that.

I think, sir, that one would have to say in a clin ical sense that it is unnecessary. lt is somewhat cosmetic, but because of the interest of the community, in general, and profes sional associations, in parti cular, in continu in g educ ation nowad ays, we wanted to acknowledge the concept and the MARN wanted to acknowledge the concept and that's the reason why it is mentioned and specified at all in 5( 1) . On the last point, with respect to the actual, I suppose, mechanics of what is at issue here, I believe that Mr. Ch ernia ck 's concerns will be addressed through

Section 48, but I know that that is asking him to take it on faith until we get to Page 20 of the bill. But I do believe they are covered and they will be resolved in that

section and through the amendments that are proposed for that part of the bill, Mr . Chairman. -(I nterjection)- And 49. Sections 48, and 49, very defini tely. In other words, Mr. Chairman, if I might have your persmission, Sections 49(1) and (2) now provide for the approval of the Mi nister. At least that is what the amendments propose. 154

Wednesday, 23 July, 1980 MR. CHERNIACK: I said earlier, if Mr. Sherman did not indicate a willing ness to consider an amendment of this, I don't mean a willi ngness, but a desire to consider an amendment at this stage, then 1 won't question that. MR. CHAIRMAN: 5(1)(

f) pass. Mr. Kovnats. MR. KO VNATS: Are we fini shed with (1) , Mr. Chairman? MR. CHAIRMAN: 5( 1) pass. MR. KOVNATS: I move THAT Bill 65 be amended by adding thereto, immediately after renumbered subsection 5( 1) thereof, the following subsection: Prior submission of regulation to membership. 5(2) Before submitti ng a regulation to the Lieutenant-Gov ernor-in- Coun cil , the board shall submit the regulation to the members of the association and the members may, by ordi nary resolution confirm, reject or amend the regulation. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Mr.

Ch airman , I \'IOUid like members to consider an additional clause in that amendment and, Mr. Ch airma n, I appr eciate the amendment. I can tell Mr. Balkaran I remember very well that I am the one who suggested it, so he doesn't have to remind me of that. There is one additional idea I want to suggest and, that is, that along with submitting the regulations to the members, it should also make them aware of the recommendations of the Advisory Council. I think they should know that when they are considering because, again, Mr.

Chairm an, with 8,000 members, 1 am sure that a very small proportion of them turn up at a meeting; I would assume that. So I think that they should have all the possible information available to them before they decide whether or not to make a real effort to go to the meeting, especially since we know they work on three shifts and many can't turn up. My suggestion would be, then, that if you would look at the amendment of Mr. Kovnats, that after the word "association" in the penultimate li ne, the words be added: "along with the recommendations of the Advisory Council".

By adding those words, it would provide that the regulation and thr recommendations will be submitted to the members in advance of the Lieutenant-Governor. MR. CHAIRMAN: Mr. Balkaran. MR. BALKARAN: I wonder if Mr. Cherniack would consider adding those words after the word "regulation" in the third line? "Shall submit the regulation together with . . " MR. CHERNIACK: Of course. MR. SHERMAN: together with the recommendations of the Advisory Council," right? MR. CH AIRMAN: We ha ve

Section 5(2), as amended pass; 5 pass - Mr. Cherniack. MR. CHERNIACK: Mr.

Chairma n, I'm sorry, the reason I said 5(2) is because I have a 5(3) to suggest, which would change the amendment to say, "add the following subsections." Actually , I would li ke to suggest the following wording: "When the board submits any regulations to the L-G-in- C, it shall include a copy of the Adv isory Council's recommenda tion and of the minutes of the association meeting which appro ved of the regulation." I think the Lieutenant-Gov ernor-in-Council must be made aware of all the background to a regulation because it is very important. I have read and agreed with the statement made by Mr.

Taylor as to the danger of a perfunctory review by the Cabinet and without criticism, because I know how busy Cabin et is, and I have to tell you, Mr. Ch airman, I have not seen Cabi net proposals for a long time, but when I used to see them every day and every week, I found that many times they were rather voluminous, but nevertheless they were pretty comprehensive and they always had a

summary. Cabin et members normally would read the

summary, unless they had a special interest to go beyond that. But it seems to me that at least when the Min ister gets the regulation, he should also have, along with it, a copy of the recommendation of the Advisory Council and an excerpt of the mi nutes where some members may have proposed certain amendments or presented certain arguments which have been recorded and let him be aware of that. Because in the end, the decision as to regulations the burden is placed on the Mini ster and then on the Lieutenant-Governor-in­ Council and I think he should be fully aware of it.

I may have made too long a speech for what should be fairly acceptable. MR. SHERMAN: Well, Mr. Cha irma n, I must say that I would consider that to be something of an encumbrance on the association, in view of the fact that there will be di rect min isterial representation on the Advisory Coun cil , both from the Mi nister of Health and from the Minis ter of Education and I might say, Mr. Chairm an, that even that

section is being amended to incr ease that representation. I recognize what Mr.

Chernia ck is saying about the voluminous amount of work and paper that crosses a Mi nister's desk and the necessity for a full bac kground and kn owledge before making a decision of this kind, but I think that is an automatic procedure that he carrie d out when he was a Mini ster and Minis ters of the day today attempt to carry out, certainly a Min ister cannot necessarily do it himself or herself, but I think that all who have been in that position have officials on whom they rely for that and I think that we come back to the basic qu estion of recog nition of a self-gov erning , professional association .

And I do have some difficulty with continual injections into the legislation which reflect, and I don't mean in any critical way, but unfortunately have the effect of reflecting on the government's faith in the judgment and responsibility and maturity of the leadership of that kind of an association. So I find the suggestion to be unacceptable, Mr. Chairman, and I would suggest that, at least from my point of view and the point of view of the Mini ster of Education, my colleague, that we would be prepared 155

Wednesday, 23 July, 1980 to rely on our dir ect appointees to that council, plus our own departmental offi cials, for ensuring that the rationale for that regulation is provided to us at the same time the regulation is proposed. MR. CHERNIACK: Mr. Chairman, I understand the Mi nister's proposed method of operation. I must say that I have a di fferent concept of the Advisory Council's structure.

And I believe that the Minis ters shall and will put a member on the Advisory Council but I'm not comfortable with the thought that that memb er will be conside red the Min ister's go­ between, between the Advisory Council.

I really would like to think that once that person is put on the board, by the Minis ters, or those persons are put on by the Minis ters, that they blend in with the Advisory Council and do not stand out as embodying that, I use the word conduit which is as good as any that comes to mind, that representative of the Mini ster which will thereupon, after his or her point of view has been expressed and rejected, go back to the Min ister and tell him what happened. I really don't think it should be like that.

I really think that once the Mini ster puts the person on there, with confidence in that person's ability to present a point of view, that that person does not carry a label all the time "Mi nister's appoin tee, Minis ter's appointee". But the way he describes the function of that person they will, in effect, have that invisible label and I regret it. 'Now, maybe the Mini ster will think that through again and change his mind. But we're really going to deal with that later on, not now. it's just that I felt I should respond to that. Anyway the motion I wanted to make is not acceptable.

I won't ask for a vote because our point of view is dif ferent. MR. CHAIRMAN: Mr. Ransom. HON. BRIAN RANSOM: Mr.

Chairman, I just want to raise a point of procedure, a point of order. it seems to me that we're departing somewhat from the agreed upon procedure when we first met last week. lt was my understanding that we were going to go thr ough all three bills and have a general di scussion, which we did, very cons tructive di scussion; that we were goin g to identify those sections of the bills which would be considered for amendment, and that we would come back here and the members would be proposing amendments and discussion would take place on them and they would be accepted or rejected.

I recognize members are attempting to be helpful in arriving at the best possible bill but it seems to me that we are perhaps reverting back to the general discussion more than was our original intention. MR. CHAIRMAN: Thank you, Mr. Ransom, I'll try and keep the members of the committee more to the amendments that are before us. Mr. Cherniack. MR. CHERNIACK: I dislike very much having to discuss what was agreed and what was arranged but I'm prepared to do that.

What is clear in my mind is that we said we would run through the bills in a co­ operative effort to understand what changes would be proposed, we would not pass the sections, we would deal with the formal passing of sections subsequently, which we are doing right now. Mr. Chairman, I don't whether Mr. Ransom thinks we are precluded from dealing with the sections as we see fit.

If he does that may be another occasion when somebody will tell me that I'm not acting in accord with an understanding, but I do not believe that anything I've done to this moment is contrary to my understanding of how we were to conduct this portion of our meeting and I will not be too acceptable to your attempting to prevent my bringing in amendments. MR. CHAIRMAN: Mr. Cherniack, that was not my intention. Mr. Ransom. MR. RANSOM: Well I wouldn' t want to be misunderstood, Mr. Chairman, there was no intention to attempt to restrict Mr. Cherniack, or any other memb er, from bring in amendments.

Tha t was precisely the agreement, in my understanding, that we were goin g to do, was to deal with specific amendments and not to repeat the discussion of principle which, for the most part, were dealt with over the two or thr ee days that the committee met previously. MR. CHERNIACK: Well then do we clarify it. Mr. Ransom expects me to move an amendment and then debate it, rather than debate it before I bring in an amendment. If that's what he wants, that's all right.

I think it's foolish because, as I've said a couple times, I can give you the exact wording, but why debate the exact wording if the principle is not acceptable and Mr. Sherman has worked very well on that and I think I have too. He has said, it's not acceptable for this reason and I have responded as to the reason and not pushed the wording. If he wants the wording, I can do that. MR. CHAIRMAN: Okay, we will proceed. 5 pass; 6 pass; 7( 1) pass; 7(2) pass; 7(3) pass; 7(4) - Mr. Kovnats. MR.

KOVNATS: I move THAT Subsection 7(4) of Bill 65 be amended by adding thereto, immedia tely after the word "registrar" the words, "shall be given written reason for the refusal and the appl icant." MR. CH AIRMAN: 7(4) as amended pass. Mr. Kovnats. MR. KOVNATS: Mr.

Chairman, I move THAT Bill 65 be amended by adding thereto, immediately after subsection 7(4) thereof, the following subsection: Discrimination prohibited. 7(5) No person shall be denied membership in the association because of the race, nationality, religion, color, sex, marital status, physical hand icap, age, source of income, family status, political belief, ethnic or national origin of that person. MR. CHAIRMAN: 7(5) pass. Mr. Cherniack. 156

Wednesday, 23 July, 1980 MR. CHERNIACK: I am risking off ending Mr . Ransom by saying that I think this is an improvement over the wording I suggested, but I realize that I'm not making an amendment, so Mr. Ransom may object to my saying this. MR. RANSOM: That credit, Mr. Chairman, should go the legislative counsel, Mr. Balkaran. MR. CHAIRMAN: 7 as amended pass. Mr. Balkaran. MR. BALKARAN: Mr. Chairman, I wonder if we may go back to 4(2) of the bill now. MR. CHAIRMAN: Do we have the permission of the committee? (Agreed) Go ahead, Mr. Bal karan. MR. BALKARAN: I have 4(2) rewritten , Mr.

Chairman, if I may read it. 4(2) Submission of by-law to members. The board shall, at least 30 days before the next meeting of the members of the associa tion, submi t all by-laws, all amendments, or repeal of any by-law made under subsection (1) to the members of the association, and the members may at that meeting, by ordinary resolution, confirm, reject or amend the by-law, amendment, or repeal thereof. MR. CHAIRMAN:

Section 4 pass. I return now to

Section 8. 8( 1) pass; 8(2) - Mr. Kovnats. MR. KOVNATS: Mr. Cha irman, I move THAT Subsection 8(2) of Bill 65 be struck out and the following subsection be substituted therefor: Recovery of fees prohib ited. 8(2) No person shall bring an action in any court to collect fees, compensation or other remuneration, for services performed as a registered nu rse, unl ess she is registered under this Act. MR. CHAIRMAN:

Section 8 pass;

Section 9 pass;

Section 10 (1) pass;

Section 10(2) pass;

Section 11 - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT

Section 11 of Bill 65 be amended by striking out all the words of the subsection immediately after the word "Act" in the fourth line thereof. MR. CH AIRMAN:

Section 11 pass; 12 pass; 13 pa ss; 14 pass; 15 pass; 16 (1) (

a) pass; 16 (1) (

b) pass; 16(1) (

c) pass; 16 (1) (

d) pass; 16 (1) (

e) pass; 16 (1) pass; 16 (2) (

a) pass; 16 (2)(

b) pass; 16 (2) pass; 16 (3) pass; 17 - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT clause 17 (

a) of Bill 65 be amended by adding thereto, immediately after the word "person" in the first line thereof, the words "at the time of employment." MR. CHAIRMAN: 17 (

a) pass. Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT clause 17 (

b) of Bill 65 be amended by adding thereto, at the end thereof, the words "and provide a copy of the report to the person whose employment is terminated." MR. CHAIRMAN: 17 (

b) pa ss; 17 as amended pass; 18 pass; 19 pass; 20 pass; 21 pass; 22(

a) pass; 22(

b) pass; 22(

c) pass; 22 pass; 23(1) - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT subsection 23(1) of Bill 65 be amended by adding thereto, immediately after the word "memb er" in the second li ne thereof, the words "in writing." MR. CHAIRMAN: 23 (1) pass; 23(2) pass; 24 pass; 25 pass; 26(a) - Mr. Kovnats. MR. KOVNATS: I defer to Mr. Cherniack. MR. CHAIRMAN: Mr. Cherniack. MR.

CHERNIACK: On 25, when I suggested that to be consistent with the wording, and I was not facetious, that it might be a good time to start saying "chair person," the Executive Director of the MARN, I don't remember what words she used, but she agreed, and the Min ister said, "but the government may not." I move that the word "chair person" replace the word "chairman." MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, at the risk of being unpopular, I am not in favor of that amendment.

I think the term "chairman" is a term like ombudsman and many others in the English language that are accepted as being all-embracing. it would make for enormous techn ical difficulty throughout all the statutes of the province if we were to make that change at thi s juncture. I don't think it is a substantive kind of thing that the MARN has asked for, nor do I feel - certainly they have never conveyed to me that they feel demeaned in any way by having their chief officer in any of these functions referred to as a chairman. I don't intend to influence anybody, but I will be voting against the amendment. MR.

CHAIRMAN: 25 as amended lost; 25 pass; 26(a) - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move 157 THAT

Section 26 of Bill 65 be struck out and the following

section be substituted therefor: Reference to investigation chairma n. 26 Where a member, after she becomes a member, is convicted of an indi ctable offence, or where the complaints committee has reason to believe or is of the opinion that a member (

a) is gui lty of professional misconduct or conduct un becoming a member; or (

b) has demonstrated incapability or unfitness to practise nursing or is suffering from an ail ment which mi ght, if she contin ues to practise, constitute a danger to the public;

Wednesday, 23 July, 1980 the committee shall refer the matter to the investigation chairman. MR. CHAIRMAN: Mr. Desjardins. MR. DESJARDINS: Mr. Chairman, is this a trade-off here, because you didn't agree with chairperson, that you have a member, when "she" becomes a member? MR. CHAIRMAN:

Section 26 as amended pass;

Section 27 - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT

Section 27 of Bill 65 be amended by adding thereto, immedia tely after the word "shall" in the second line thereof, the words "conduct a prelimina ry investigation or." MR. CHAIRM AN: 27 pa ss as amended; 28(

a) pass; 28(

b) pass; 28 pass; 29 pass; 30 - Mr. Sherman. MR. SHERMAN: Mr. Ch airman, just for the information of Mr. Cherniack and the committee, we had made the notation that a clause on confidentiality was required at that point. lt appears under

Part X of the bill. MR. CHAIRMAN: 30 pass; 31 (a) - Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, if you will give me a moment. I have an amendment. I'm afraid, not having secretarial help to the extent I would like to have, about which I made a speech yesterday, I would like to di stribut e an amend ment in my scribble, and will read it. MR. CHAIRMAN: We are on 31. MR. CHERNIACK: I have a problem here, Mr. Chairman, with my own notes, and I'll just say that my note has that there ought to be an amendment to conform to the amendment of

Section 27. My notes read, Mr. Chairman, for 31, to replace the first three lines preceding the (a), are: "Upon conclusion of a prelimi nary investigation, a written report shall be prepared and thereupon the investigating chairman shall" (a), (b), (c). The point, Mr. Ch airman, now I recal l, and I appreciate your permitting the delay: The point is that now that we have provided that the chairman shall conduct, or someone else shall conduct on his behalf, under 27, then 31 does not read to recognize that the chairman hi mself may ha ve done the investigation.

So I took this wording - I think I took it straight out of the RPN, and I think it is more applicable, because then it says regardless of who conducted the investigation, a report shall be prepared and then the investigating chairman shall decide. 1 hope I make it clear, because I think that this is just a matter of drafting. -(I nterjection)- 31, which I think is in conflict, or confusing in relating it to the new 27. -(I nterjections)- May I repeat it, Mr. Chairman?

In 27 we made a change that was agreed to, that says that the investigating chairman shall conduct a prelimina ry investigation, or di rect someone else to do it. Bearing in mind that change, then if you read 31 it says the person conducting investigations shall report, in writing, to the chairman, well the chairman would then be reporting to himself. MR. BALKARAN: Except where the chairman is conducting investigations. MR.

CHERNIACK: Wel l, my sugg estion was a wording which I took out of the RPN bill, which reads "upon conclusion of a prelimina ry investigation, a written report shall be prepared and thereupon the inv estigation chairman shall : (a), (b) ... Mr . Chairman, it's a drafting matter only I'm drawing to your attention and whatever Mr. Balkaran thinks should be done, or if nothing is to be done, okay. MR. SHERMAN: I have no objection to that, Mr. Chairman, if Mr. Balkaran agrees on the argument in favour of drafting conformity, it appears that the way the

section is drafted in Bill 66 is clearer and more di rect and fits better with the foregoing sections. MR. CHAIRMAN: Can we just leave

Section 31 for the time being? (Agreed) We'll go on to Sect ion 32 pass;

Section 33 pass; 34( 1) - Mr. Kovnats. MR. KOVNATS: I move; THAT subsection 34( 1) of Bill 65 be struck out and the following subsection be substituted therefor: Composition of Discipline Committee 34(1) The committee shall establish one or more discipline committees, each comprised of: (

a) a person recommended by the Min ister (

b) four individuals whose names are entered in the roster of active, practising members, of whom four shall constitute a quorum. MR. CHAIRMAN: 34( 1) as amended pass; - Mr. Sherman. MR. SHERMAN: Mr. Chairman, correct me if I'm wrong on this but I thought that, of course it's covered later on, I thought we were going to have a clause in there saying that they should not include any persons who were involved in the investigation. Is it covered later on? MR. CHAIRMAN: Pass. 34(2) pass; 34(3) pass; - Mr. Kovnats. MR. KOVNATS: Mr.

Chairman, I move; THAT subsection 34(3) of Bill 65 be struck out and the following subsection be substituted therefor: Associations Representation at Inqu iries. 34(3) The association solicitor may participate in an inquiry before a committee but shall not vote thereat, or have pa rtici pated in the inves tigation of the matter before the committee. MR. CHAIRMAN: 34(3) as amended pass; Mr. Balkaran. MR. BALKARAN: Mr. Chairman, you might go back to

Section 31. In lieu of the first two and half lines of 158

Wednesday, 23 July, 1980 that section, I wondered if the following words would suffice to the committee. lt reads as fol lows: "Upon conclusion of a preliminary investigation a report of the findings shall be prepared and thereafter the inv estigation chairman shall ... ". MR. SHERMAN: Well, Mr. Chairman, why would the Legislative Counsel suggest omission of the term "written"? At least in both bills it was a written report and Legislative Counsel is now suggesting just a report. MR. BALKARAN: We could add the word "written" Mr. Chairman. Can I read it again?

"Upon conclusion of a prelimi nary investigation a written report of the findings shall be prepared and thereafter the investigation chairman shall ... " MR. CHAIRMAN: 31 as amended pass; - Mr. Kovnats. MR. KOVNATS: Mr. Cha irman, we're proceeding after 34(3) at this point? MR. CHAIRMAN: I believe that's the one we're at. MR. KOVNATS: Fi ne. Mr.

Chairman, I move; THAT Bill 65 be amended by adding thereto, immediately after subsection 34(3) thereof, the following subsection: Members of discipline committee not to investigate matter (34(4) A person who is a member of a discipline committee shall not partici pate in, or carry out, an investigation of any matter that will be referred to that discipline committee for consideration. MR. CHAIRMAN: 34(4) as amended pass; 35(

a) pass; 35(

b) pass; 35 pass; 36( 1) pass; - Mr. Kovnats. MR. KOVNATS: I move; THAT subsection 36( 1) of Bill 65 be amended by striking out all the words of the subsection immediately after the word "shall" in the third lin e thereof and substituting therefor the words and figures "within 30 days from the date of the dir ection or decision, fix a date, time and place for the holding of an inquir y, which shall commence no later than 60 days from the date of the direction or decision". MR. CHAIRMAN: 36( 1) as amende d- pass; 36(2) pass: Mr. Kovnats. MR. KOVNATS: Mr.

Cha irman, I move; THAT subsection 36(2) of Bill 65 be amended by striking out the figures "31" in the fifth line thereof and substituting therefor the figures "30" . MR. CH AIRMAN: 36(2) as amended pass; 36(3) pass; 36(4) pass; 36(5) pass; 36(6) pass; - Mr. Kovnats. MR. KOVNATS: Mr. Ch airman, I move; THAT subsection 36(6) of Bill 65 be amended by adding thereto at the end thereof the words "and the board is satisfied that none of the parties to the hearing would be prejudiced by the holding of a public hearing". MR. CHAIRMAN: 36(6) as amended pass; - Mr. Chern iack. MR.

CHERNIACK: This is another one of what I think are a few di fferences that have turned up at the earlier meeting, and I think this is, of course, an improvement over what is there now. I assume that the

interpretation to the wording in the original of 36(6) is interpreted to mean that when there is an application there shall be a public hearing, unless the board is satisfied that . . . Do you follow me, Mr. Chairman?

The first time I questioned whether an application was sufficient, since it appears to me that maybe the board could, on application, refuse to grant it, but the wording of this amendment seems to accept a principle that if the member wishes a public hearing it shall be held , unless - and then the wording - "unl ess the board is satisfied that none of the parties would be prejudiced by the holding of a public hearing". That's the way I interpreted it, and I think I'm right and if I'm wrong I wish I could be corrected before I proceed with the amendment that I've already had distributed.

And you'll see that what I've done, I think, is to make clear what is the intent, but it also swings the onus and I bel ieve it establishes the principle of open, I could even use the word government, open government by the associa tion, except under certain justifiable circumstances. So, if you don't mind and maybe for the benefit of those who can't read my - I was told by a penmanship teacher that I st ill have a Grade 6 standard handwriting - Grade 6 standard. That was few years ago. MR. KOVNATS: Mr. Chairman, just for a moment, if you don't mind, Mr. Cherniack. I always believed that Mr.

Cherniack was a member of the legal profession but after reading his amendment I believe that he is a member of the medical profession because it appears that it seems to be a subscription or a prescription of some kind. MR. CHAIRMAN: Order please. I think we're veering just a little bit from the topic at hand here. MR. KOVNATS: If Mr. Cherniack will excuse me for the interjection. MR. CHERNIACK: Of course, it's an honour to be given credit for being a member of either profession. MR. CHAIRMAN: Mr. Ch erniack, may we have your amendment. MR.

CHERNIACK: I move; 159 THAT the following replace 36(6): All hearings of the discipline committee shall be held in public unless the person whose conduct is the subject of the inquiry requires a private hearing; or unless the board has given written reasons to the effect that one or more

Wednesday, 23 July, 1980 parties to the hearing would be prejudiced by the holding of a public hearing. As I said, Mr. Chairman, it establishes a principle. A public hearing, but it says, wait a minute, there may be some very good reasons that this should be in private and it sets out the reasons.

(1) That the person affected might object; (2) that anybody else affected might convince the board that it would be better that there would be a prejudice of some kind if it is a public hearing. MR. SHERMAN: Mr. Chairman, as Mr. Cherniack has pointed out, what it does is it shifts the onus precisely to the other end of the equation and that's not acceptable to me.

I think the onus should be precisely where it is, that hearings before discipline committees, particularly in the health field where you might be dealing with somebody who is suffering from a mental disorder, you might be dealing with somebody who had been subjected to some kind of sexual abuse, you can be dealing with a whole range of un fortun ate and, to a conside rable deg ree, unsavoury possible situations and I think the onus should be on the private hearing, that is where the emphasis should be, to protect, to ensure that everybody knows that they are protected, unless that person has applied for a public hearing and the board agrees that nobody is going to be prejudiced.

I think Mr . Chernia ck reads the un amended section, the orig ina l section, the way I read it, correctly, and that's why we wanted the amendment. He wanted the amendment for a di fferent reason, and a perfectly legitimate reason, but the reason I wanted an amendment was because the way it reads all you had to do was apply for a public hearing and the board had to make it public. In the health field, I suggest, Mr . Chairman, that verges into very dangerous territory. MR. RANSOM: On a point of order, Mr. Chairman. Do we have two amendments proposed here now on the floor? MR. CHAIRMAN: Yes, we do.

I was just going to deal with Mr. Cherniack's right now. MR. CHERNIACK: Mr. Chairman, Mr. Ransom is quite right. I was precipitous. I think what we ought to do is deal with Mr. Kovnats' amendment, for which I intend to vote, and then deal with mine as a replacement of the one that was amended by Mr. Kovnats. MR. CHAIRMAN: We have two amendments before the floor. We'll go back and deal with Mr. Kovnats' amendment first. Mr. Filmon. MR. FILMON: Mr. Chairman, just to throw another monkey wrench in the works. I'm more than satisfied that the bill as it appears, Mr.

Chairman, gives the right weight and emphasis that the hearings would be held privately, unl ess the person who is the subject of that hearing chooses to have it in public and it would seem to me that that person has the most to lose by having it in public, in terms of their professional reputation and everything else, and therefore it should stay as it is. I can't see that there should be anything else to amend it. MR. CHERNIACK: Mr. Chairman, it so happens that was my point originally and all I wanted to make sure is that an application was equivalent to a mandatory requirement. I agree with Mr .

Filmon, but I understand clearly the point made by Mr. Sherman. I understand that there may be a witness involved even whose health, whose mental health, might be adversely affected if such a matter is in publi c. I still would opt for Mr. Filmon's choice. I do understand Mr. Sherman's point of view and that's why I drafted my amendment. But I would like to suggest that if the board makes the decision - we're still dealing with Mr. Kovnats' amendment - if the board is satisfied that any one of the

partie s may be prejudiced by the holding of public hearings, I really think that ought to be a decision in writing, with reasons, so that when, as and if it goes to appeal, somebody up there, like the board of the association or the Court of Appeal, can look back and say, why did they make that decision contrary to the request of the members? So I have to say to Mr. Filmon, I agree with him, nevertheless, I accept Mr. Sherman's concern and for me it's sort of a compromise because I didn't get a clear indication that the wording, as it originally was, a requisite was mandatory. MR. CHAIRMAN: Mr. Desjardins. MR.

DESJARDINS: Mr. Chairman, we have th ree dif ferent points. The 36(6) as it is now, protects the person that is being disciplined or investigated but not anybody else and I believe that's the concern of Mr. Sherman and I agree with it. But I do belie ve though, however, that Mr. Sherman's point is well protected with this compromise resolution of Mr. Cherniack's. I can't see anything wrong with that. I read it and reread it again and it gives the protection to the person being in vestigated and anybody else. But it's just suggesting well then just to make sure that this is done in writing.

I can't see where that's going to in terfere with anybody or will not give the proper protection to all those that might be concerned, where it might make it that difficult. I would certainly suggest that we adopt this amend ment of Mr. Cherniack's covering, I think anyway, the points that I'm concerned with and that Mr. Sh erman has brought up. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, I agree with Mr. Desjardins that there isn't really much dif ference. Mr. Cherniack 's am end ment and Mr.

Kovnat's amendment essentially say the same thing but they say it in a di fferent way with a dif ferent emphasis and that is where I have my difficulty with Mr. Cherniack's amendment. lt puts the emphasis on the fact that hearings of this kind are expected to be public hearings and you have to make a pretty good case to have a private hear ing;

whereas the amend ment proposed by Mr. Kovnats puts the emphasis on the fact that these are expected to be 160

Wednesday, 23 July, 1980 private hearings and you have to make a pretty good case to have it public. So Mr. Desjardins is correct when he says he doesn't really see any clinical di fference, I would agree with him. it's a matter of a di fference of emphasis. But I want to just try to salvage Mr. Filmon here before he slips over the edge on me, Mr. Chairman. I put to him just a hypothetical case involving sexual abuse or child molestation, for example, and that happens.

Why should the inquir y be public simply because the doctor or nurse who is the subject of that inquir y asks to have it public and put the child, and his or her family, through the anguish of a public inquir y, in which there is id entification of the individual and all the traumatic fallout that results from that sort of thing? We're not talking here just of protecting the person, as Mr. Desjardins has pointed out, who is the subject of the inquir y but protecting those persons who were touched by the alleged professional misconduct that gave rise to the inquir y in the first place.

So the clause as it is presently written I find unacceptable because it makes it mandatory to hold it in public as long as the person who is the subject asks for that. MR. CHAIRMAN: Mr. Filmon. MR.

FILMON: Well, I certainly concur that I would not like to have the emphasis switched so that all inqu iries are public unless a strong case is made in writing because it seems to me that that would deter the public and the in terested people in the profession from ensuring that they do expose and investigate all potential areas of non-pr ofessional conduct that should be investigated fully, because people would be reluctant if they knew that any time they laid a complaint it was going to be in a public hearing. They would be reluctant for perhaps the reasons that Mr.

Sherman has indicated and might be reluctant as well if they were laying a complaint against a fellow worker, that they're going to be destroying that person publicly when, in essence, they want to call into question their professional malpractice, shall we say. I would rather see the onus being the way it is in the present

section or, failing that, Mr. Sherman's suggestion, but I do not accept Mr. Ch erniack's position on it. MR. CHAIRMAN: Mr. Desjardins. MR. DESJARDINS: Mr. Ch airman, I'm completely befuddled now. The member is saying that his first choice is still 36(6) but I clearly heard him say that he wouldn't want somebody that is making the complaint, somebody other than the one that is being investigated, well, under 36(6) they have no say in it at all. lt is the one that's being investigated just states that he or she wants a public hearing and that's it.

So that's the concern of the Mini ster, I think and myself, that these people are not protected at all. Now you say you don't want where the onus is on somebody to make a strong case. lt doesn't say this in the amendment of Mr. Cherniack. lt says, "unless the person whose conduct is the subject of the inqu iry requires a private hearing" period, then I think the other people, if there is a reason, fine and this is what we're suggesting, a written reason. These people after all are making, in most cases, serious allegations.

So if something happens that it's better that it will prejudice these people, it will be stopped, there's not a stronger case than that. But this gives protection to both parties, the accused and the people doing this. How often does that happen? I would imagine that if I'm being investigated I'll say, okay, I don't want an open meeting and that's easy.

The written reason is for the other people to make sure those who are making the accusations, if they're going to be prejudiced, and if not there's no reason in the world why they should not come forward and be able to say that these people are accused of doin g something wrong. But in 36(6) there's no protection for those people whatsoever. MR. CHAIRMAN: Mr. Film on. MR. FILMON: Mr.

Ch airman, just in response to that, it's my feeling and I stand to be persuaded, that the person who's being accused of a sexual offence or sexual molestation would be far more reluctant to have that held in public than the one to whom it happened, and the victim. That's why I'm saying the protection is there, that person is surely not going to ask for that investigation to be held in publi c if they're being accused of sexually assaulting somebody. MR. DESJARDINS: Then why are you so much opposed to Mr. Cherniack's amendment? MR.

FILMON: Because he says all of them are in public unless written reasons are given. MR. DESJARDINS: I don't see - maybe I'm not reading it right - but I don't see there has to be a written reason by the person who is being disciplined -(I nterjection)- "or unless the board". The one that's being disciplined can just say, I don't want an open meeting; fi nal. But then to gi ve adde d protection to the other people they're saying, all right, the board is saying this is going to prejudice these people.

Like you say, there'll be very few of them where the person says, yes, I want an open meeting, to the person who is being disciplined or under investigation, only in that case. But if that person says no, I don't want an open meeting, period, then nothing else is needed. MR. CHAIRMAN: I think we'd better get back and deal with one of these amendments at a time. MR. DESJARDINS: Mr. Chairman, excuse me, but I think that the committee are free to decide how we conduc t this and I think we're doing it the best possible way.

If we start having a vote on every single one, I think we might be close to getting some kind of a compromise or . . . MR. CHAIRMAN: I recogniz e Mr. Cherniack. MR. CHERNIACK: Oh, thank you, Mr. Cha irman. Listening to the discussion that's taking place I am not swinging compl etely to Mr. Filmon's position because we are dealing with the livelihood of a 161

Wednesday, 23 July, 1980 person, the professional integrity of a person, the right to continue in the professional association. To me that's more imp ortant than the feel ings of another individual. Our law generally is that a person adversely dealt with - and I mean a complaina nt in this case - has to have enough justification in his or her own mind to make a complaint and to support it publicly. Mr. Chairman, I have now swung completely in favour of Mr. Filmon's position.

Should he fail and should the amendment here go through, then I will argue my other position as being closer to that position than the amendment. So if we're dealing with Mr. Kovnats' amendment, I am now opposed to it. MR. CHAIRMAN: Question? Okay, we'll deal with the amendment as proposed by Mr. Kovnats. A COUNTED VOTE was taken the results being as follows: Yeas, 4. Nays, 3. MR. DESJARDINS: Mr. Chairman, if I may. I'm opposed only once if this doesn't go through, but I much prefer it to the one that's 36 now. I'm very much opposed to 36(6) the way it is now.

But this would be my first choice and this my second choice. MR. CHAIRMAN: Now, 36(6) as proposed by Mr. Kovnats is passed, now can we deal with ... Mr. Cherniack. MR. CHERNIACK: Now, Mr. Chairman, I want a slight refinement on 36(6). lt says, "and the board is satisfied that none of the parties would be prejudiced". That to me is not quite enough, Mr. Chairman. I've accepted the fact that the motion is passed and I'm no longer debating whether or not we should pass it. 1t seems to me that the board has to be more than satisfied.

I think the board has to find that none of the parties would be prejudiced and if it finds otherwise, that it should give written reasons for that finding, and that's where I got into trouble. The real reason I drew 36(6) is because it was a reverse onus and I felt that if the board decides that it shall be in private, even though the person affected wanted it in public, then the reasons for that decision should be recorded because then I think it is a proper subject for the board of the association to review and for an Appeal Court to review.

I stand on the premise that we all agree that there shall be trials and justice shall be seen to be done, well then we hedge on certain things. So I'd like to ask the Min ister, and Mr. Kovnats will forgive me for stating my opinion that the Mini ster dr ew the amendment and it's his wording, or I'l l ask Mr.

Kovnats whether accepting this wording we cannot add an amendment, an addition, or elaborate on this to provide that when the board is not satisfied that no one would be prejudiced - and that's sort of like a double negative - my point is, it shall give written reasons when it refuses the request for an open trial. Can that be accepted? MR. DESJARDINS: You mean, "in such instances" and whatever else? MR. CHERNIACK: When the board does not concur with the request "it shall state written reasons" for that decisi on. And if we agree with that, Mr . Chairman, and I'm so conscious of Mr.

Ransom feeling that we mustn't go beyond what he thinks is our agreement. Nevertheless, if we can agree with that then Mr. Bal karan may be able to draw an amendment along the lines. But the reason I am prepared now to propose 36(6) is because I could not easily yesterday come up with this point that I wanted to bring out and that's why it was easier for me to reverse it and therefore to change what I thought was a double or even a triple negative, in a positive way in the wording of 36(6), excluding what is in the brackets in the second and third line.

So unless the committee is prepared to consider my proposal about giving reasons, written reasons for the rejection of the application, I would move 36(6) as I have distributed. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: If I understand Mr. Chernia ck correctly, what you are proposing is that 36(6), as just amended, would stand in essence, but added to it, and obviously we don't have the wording worked out, but added to it would be a clause roughly along the lines of the following, "and where the board is not so satisfied, it shall give written reasons." MR. CHERNIACK: Yes. And then I don't care about my 36(6). MR.

SHERMAN: I think that that is acceptable, Mr. Chairman. Can we just leave this for a second and let Mr. Balkaran write it up? MR. CHAIRMAN: Mr. Balkaran. MR. BALKARAN: The amendment would be, Mr. Chairman, to add to 36(6), as amended, the following words: "but where the board is not satisfied that the public hearing would be prejudicial to any of the parties, it shall give written reasons therefor." MR. CHAIRMAN: Mr. Desjardins. MR. DES JARDINS: Mr.

Chairman, it would be something like this: "but if the board is satisfied that there will be prejud ice, then such reasons should be given in writing." That's the meaning of it and the intent of it. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: May I suggest: "but where the board determines that there may be prejudice, it shall give written explanatory reasons." MR. SHERMAN: Just "written reasons." MR. CHAIRMAN: Mr. Cherniack, would you repeat your clause again. MR. CHERNIACK: am satisfied that the first part of it is clear.

But where the board determines that there may be prejudice, it shall give written reasons for the decision. 162

Wednesday, 23 July, 1980 MR. BALKARAN: Would you say "to any of the parties to the hearing?" MR. CHERNIACK: Yes, of course, if you want to add that. MR. CHERNIACK: I think maybe it is still better to say "shall give written explanatory reasons." MR. SHERMAN: Just "written reasons." MR. CHERNIACK: "written reasons" for a determination; okay, if that's satisfactory. MR. BALKARAN: These words will be added on now, Mr. Chairman. "Where the board determines that there may be prejudice to any of the parties to the hearing, it shall give written reasons therefor." MR. CHAIRMAN: Agreed? Pass. Mr. Cherniack. MR.

CHERNIACK: Mr. Chairman, I then withdraw the motion I proposed to make on 36(6) and I move the addition as suggested by Mr. Balkaran. MR. SHERMAN: So it becomes a subamendment to the amendment. MR. CHAIRMAN: 36(6) with the subamendment to the amendment pass; 36(7) pass; 36(8) - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT Subsection 36(8) of Bill 65 be amended by adding thereto, at the end thereof, the words "and the person or her counsel or agent has the right to examine all documents and records to be used at the inqu iry, prior to the date of the inquiry." MR.

CHAIRMAN: 36(8) pass; 36(9) pass; 36( 10 ); 36( 11 ) pass; 36( 12) pass; 36( 13 ) pass; 36( 14 ) pass; 36( 15 ) pass; 36( 16 ) pass; 36( 17) - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT Bill 65 be amended, adding thereto, immediately after Subsection 36( 17 ) thereof, the following subsection: Rules of Procedure. 36( 18) A discipline committee for the purpose of holding an inquiry may prescribe its own rules of procedure. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: I think this is worse than the point I had made before.

I had suggested that we follow the wording in Bill 66, the RPNs, which said that evi dence shall be in accorda nce with the Queen's Bench rules. Mr. Sinclair objected to that, and I think his reason was that it not being a court and being made up of people who may not be so well trained in the rules of evidence, that they should not be bound by those rules. When I objected, I think he said, well, the rules of natural justice would prevail, something like that. 1 am concerned, Mr.

Chairman, that when the dis cipli nary commit tee makes its own rule s of procedure, and I realize that we're not talking about evidence, we are talking about procedure, that if the rules are such as may be considered unfair, a court or the board, in reviewing the Act and finding that the discipline committee is entitled to make its own rules, may then say, even if the rules are not fair, it had the power to make them that way. I think I would rather not have this at all than have it.

If we have to have it, then it seems to me that either the Act, or at least the board, should, by regulation, set out rules of procedure that will be conducted. Because the way I read this, is that from time to time, from occasion to occasion, from case to case, the discipline committee holding an inquir y may prescribe its own rules, and now I am offended at the thought that it might have di fferent rules at di fferent times and in di fferent cases. I am not suggesting that's the intent; after all, this is a re­ draft.

I would like to suggest that in place of this proposal, we should go back into the regulations and say that the regulations may prescribe rules of procedure of committees of the board, or of the discipline committee, but at least make it done in advance, done by somebody who is going to have really a serious look at it, and not the committee itself at the time. What reaction does that concern produce? MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, we ha d considerable discussion last Saturday, I believe it was, on the point that Mr. Cherniack has raised - perhaps it was last Friday.

I understand it, and I took it back for consideration, as I told him I would, and I might say to him that 37( 16 ) in Bill 66, which is the comparable

section on Rules of Evidence, is the subject of a proposed amendment that will be forthcoming when we come to that bill, which will say precisely what this amendment says. I did investigate it, Mr.

Chairman, and I am advised that across the spectrum of boards and commission, that this is the normal practice, that they establish their own rules of procedure, that it is considered impr actical to expect lay persons to conform to the rules of procedure foll owed in the Court of Queen's Bench, and that the High way Traffice Board, the Civil Service Commi ssion, the Mar keting Boards and Commissions, a number of others, the Labour Board, all have this provision that they shall establish their own rules of procedure.

As a consequence, we are moving an amendment to make that change in Bill 66, as it would seem sensible to have the bills conform in that respect. MR. CHERNIACK: I wonder if Mr. Sherman could react to my point about the rules being determined in advance to apply to all, and in that way, I would think that it should be the board. I don't care then who draws the rules, but I think the board should have the responsibility of approving the rules and they should not be done ad hoc during a hearing, but in advance so it is known. Mr.

Chairman, I have to, for my own conscience, report to you of an occasion when I appeared before 163

Wednesday, 23 July, 1980 a discipline committee - actually, I think it was an executive of a board - of a professional association in the health fi eld. I was acting on behalf of a member who was being investigated for discipline on exactly the same charge as another person, both of them having been charged with the same offence relating to the same occurrence.

The board, sitting with a lawyer, whom I will not name because I still think he's a nice fellow, in spite of what I am about to tell you - on the advice of that lawyer, the board refused to let me or my client be present while the evidence was given against the other person charged, and then refused to permit him or his lawyer to be present when my hearing was taking place, all of which was being conducted by the lawyer of the board as the prosecutor, and at the conclusion we were sent out and he, with the board, drew their decision. I can only say that the other lawyer and I, he now being Mr.

Ju stice Peter Morris, and I appealed the case to Mr. Justice Rhodes Smith , who threw it out of hand, which shows that justice does play a role. But they determined their own rules and they did it right at the time. They said, "You get out and we'll hear this and then you come in and the others will get out." The same set of facts. So that supports my concern that a committee should not be able to make rules as it goes along and from time to time.

I would like to clarify it and if you want to - I don't agree with this at all - but at least to say a discipline committee may prescribe rules of procedure, subject to approval by by-law, }IOU can say, so that it goes to the board. Something like that, Mr. Chairman. I think that that's a reasonable suggestion. MR. CHAIRMAN: Mr. Desjardins. MR. DESJARDINS: I wonder if the government and Mr.

Chern iack would agree to this, that if the proposed 36 amendment, this new clause 36( 18 ), if "we just tacked onto the end "providing these rules have been approved by the board." This is not the government involved; it is still self-disci pline and it is the board, at least there is that protection. Would that be acceptable to the Minis ter and government? MR. SHERMAN: Mr. Cha irman, let me ask Mr. Cherniack and Mr.

Desjardins whether it would be acceptable to them if the clause read that a discipline committee, for the purpose of holding an inquir y, may prescribe its own rules of procedure, not inconsistent with the provisions of this Act. MR. CHERNIACK: Mr. Chairman, I'm sorry. I don't think there's anything in this Act which sets out protections. Because that's one of my complaints about the by-laws and regulations, and your refusal to accept my suggested objectives, that there is nothing in the Act that would determine that there is something cont rary to it. I'd rather buy Mr .

Desjardins on the subject of the approval of the board, I would much prefer it set out in regulations, then I know we've got Legislative Counsel, we have the Advisor to the Mini ster, who has reviewed them and appro ved them. So I would rather have nothing. I would rather then have regulations, then I would rather have by-laws but not a general ph rase like "consistency with the Act". MR. DESJARDINS: Mr.

Chairman, my reason for making the suggestion is that I think I can see the intent and the purpose of the Minis ter and I go along, certainly in many ways, that we are trusting these people, we are saying, okay, we're saying its your responsibility to discipline your members. But now to make sure, so therefore I wouldn't want anything conforming to the wish of the Min ister of saying, but we're looking over your shoulder all the time, like we'll decide or the Min ister will decide.

I'm not suggesting that but I'm suggesting their own board then may pr escibe its own rules and procedure and have those approved by the board. I can't see where this needs a lot of debate but it's still leaving it up to them and leaving it up to the board which is supreme. MR. SHERMAN: Well, Mr. Chairman, Mr. Desjardins is suggesting then that 36( 18) would read "subject to the approval of a board, a discipline committee . " MR. DESJARDINS: Right. MR. SHERMAN: Well that's acc eptable, Mr. Chairman. MR. CHAIRMAN: Mr. Balkaran can you read that into the record then. MR. BALKARAN: The amendment as amended? MR.

FILMON: Mr. Chairman, I was just going to say, in support of that, it seems to me that the board and the discipline committee have the most to lose if they set rules that aren't acceptable in a court of law because whatever action they take could be just th rown out of court, as Mr . Chernia ck has mentioned, simply because they didn't follow proper rules of procedure, as opposed to the essence of what was being argued in the case. And so I think that it's in their interest that the rules be set properly and that's enough protection as far as I'm concerned. MR. BALKARAN: Mr.

Chairman, I hope I may be excused for saying what I'm going to say now. I'm not satisfied it's a legal point that the rules of procedure, if they found that court to be contrary to the principles of natural justice, I would think that the court would act to overturn their decisions, I'm not worried about that. But I bring to the committee's attention one other point.

We are dealing only with rules to be prescribed by the discipline committee and I want to suggest that you may the board itself holding hearings, making inqu iries and indeed the complaints committee may also be involved in that type of an exercise, and I was going to suggest an alternative to 36(1 8) that would cover all three groups, and it reads as follows: "The board may, by regulations, subject to the appr oval of the Lieutenant-G overn or-in-Counc il, prescribe the rules of procedure to be follo wed by the board or the discipline commit tee or the complaints committee in any hearing, or inqu iry 164

Wednesday, 23 July, 1980 before the board, discipline committee or complaints committee." MR. CHERNIACK: Of course I accept that. MR. DESJARDINS: Well, Mr. Chairman, I think we were just about to accept 36(18 ) except the last suggestion of Mr. Balkaran, I agree that these things might be protected. But now we are saying to the board, to the association, okay, you run your own business, but we want to make sure that if you're going to pass this on, or give rights to di fferent committees, you accept the responsibil ity. So you approve, this is all I'm saying.

We're not interfering we are saying, but you accept the responsibility and therefore they have to approve the procedures. MR. SHERMAN: I apprecia te Mr. Balk aran 's suggestion and his effort but I can't accept that, Mr. Chairman, it puts up right back to square one really and I think that it is, to a certain extent, unfair and, in any event, unreasonable to expect that precise rules of proced ure, with respect to a di sci pline committee hearing can be laid out in advance and laid down in regulations.

In other words, enshrined in legis lation, when one does not kn ow what it is precisely that one is going to be dealing with. I just don't find that that prior cod ificat.on for a professional association is acceptable. I can accept Mr. Desjardins proposed amendment and I think that since the board really doesn't become involved here until the appeal process is launched, which is the next stage of the process, at this point we're dealing with the rules of procedure of a discipline committee and I think that the board would be in a position to approve those rules and procedures. So I would favour Mr.

Desjardins proposed amendment. MR. CHAIRMAN: Mr. Balk aran has another proposed amendment. MR. BALKARAN: If Mr. Desjardin's amendment is accepted, Mr. Chairman, 36( 18 ) would read: "The discipline committee, for the purpose of holding an inquiry may, subject to the approval of the board, prescribe its own rules and procedures." And with that suggestion, Mr. Chairman, I point out to you that you've left the complaints committee on its own. MR.

DESJARDINS: Well, we're dealing with the discipline committee, now is there any other area where we're dealing with the complaints committee and you can make the same reason in that. MR. CHERNIACK: If I understand the function of the complaints committee properly as being one that hears the in vestigation chairman's report and decides whether or not to lay a charge, I'm not that concerned really because it is informal. MR. SHERMAN: We weren't concerned when we went through the bill the first time.

I'm not saying we shouldn't be now but we did feel it was at the discipline committee hearing level that this needed to be laid out in some recognizable form. MR. CH AIRMAN: 36( 18 ) pass; 37( 1) pass; 37(2) pass; - Mr. Cherniack. MR. CH ER NIACK: Mr. Chairman, I have an amendment. After the word "committee" in the first line and the reasons therefor'', so it should read the "d ecision of the discipline comm ittee and the reasons therefor shall be embodied in the formal order of the committee." I don't think I have to argue with that. The decision and the reasons therefore. MR. SHERMAN: Again, Mr.

Chairman, we looked at this and our position on it was that we didn't think that written reasons were necessary in this function. The decision is embodied in a formal order and the person has presumably been through the discipline committee hearing and we feel it is un necessarily restrictive to impose a condition of written reasons on the committee. So we had not prepared any amendment for that section, although I know I agree with Mr. Cherniack that it was one of those that was identified and questioned on the first run-through.

But he will have to sell me again on the reasons why they should be required to provide written reasons. MR. CHAIRMAN: Mr. Desjardins. MR. DESJARDINS: Mr. Chairman, after all, the impo rtant thing here is this person who is being disciplined, and I think that these people should have protection also. Surely, if somebody is goin g to tamper probably with your livelihood and so on and if they are going to make a decision, you should be informed why that decision has been made.

Sure, they are going in front of this discipline committee, which is not making a decision; there is questioning and so on and they make up their minds and then they say, here, this is our decision. But surely these people are entitled to find out why that decision was arrived at, especially if it is going to prevent you from exercising your livelihood.

I don't say - the Mi nister used the word "restricted" - that is not restricting anybody. lt is serious enough that they should be able, and I am sure that if they are going to arrive at some decision to discipline a member, they certainly should, and they would have asked themselves, "Why are we doing it?" If not, there is something wrong in our whole system. I don't think that that's asking too much, Mr. Chairman, and the Min ister, being a reasonable man, says that he wants to be convinced.

I think that if he stops and thinks a minute, that it is not restricting anybody; it is not causing any hardship on anybody but it is saying to somebody, well, all right, this is the decision and this is the reason why we have done it. I think that's the least that you are entitled to. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, just consider the position of the person disciplined. Here is an order; the dis cipline commit tee decided something and whatever they decided, it is adverse to the health and welfare of the member.

The member now has a choice, she accepts the discipline or she decides to appeal it. On what basis does she decide to appeal it? Well, she'll go to her lawyer, if she has a lawyer, or her adviser, and they'll say, well, now, what was wrong with the decision of the discipline committee? Other than the fact that they are hurt by it, how do they decide whether or not to launch an appeal if 165

Wednesday, 23 July, 1980 they don't know what the reasons were? Should they then automatically launch an appeal every time in order to find out the reason? Some may do that, but others may say, you know, I don't think we can go in on those reasons, there is a precedent. Again, I know nothing about the Dr. Schwartz case, but from the newspapers, I gather that Dr. Schwartz did not appeal the decision of the College of Physicians, and I am pretty sure that his decision not to appeal it is that he felt the reasons were such that he would fail.

I don't know, I am just guessing, but as a lawyer, I would say that when I decide to advise a client on whether or not to appeal, the very place I'd go to, what are the reasons? That's one of them.

Numb er two: Read 41( 1 ): "The board shall, at a meeting held for that purpose," that's for the appeal, "consider the decision of the discipline committee and shall hear any representations that the member concerned and the complainant, or their counsel or agent, wish to make respecting the findings and the order of the discipline committee and the record of proceedings." There is no provision that the court must have a trial de novo.

Now, how is the board going to be able to come to a conclusion without knowing why it was that the discipline committee made its decision? lt is going to look at the transcript; it is going to hear arguments. Now, for all we know, the arguments will be on two conflicting or opposing impressions as to why the discipline committee made the decision it did. But if we have the reasons for ... Mr. Chairman, I don't think I'm going to try much harder to persuade the Mini ster.

I just think it is really obvious that you have to have the reasons in ord�r to decide whether or not to appeal, and when you are sitting on appeal, in order to decide whether or not the discipline committee was right. Otherwise, Mr. Chairman - I will not use the analogy that came to mind that had to do with a very drastic decision made in other parts of the world - but you have got to have a reason for what you are doing and it is your reason that is subject to review, not necessarily the decision itself. 1 am not going to try any more, Mr. Chairman. I really think that MR. CHAIRMAN: Mr. Sherman. MR.

SHERMAN: Mr. Chairman, it seems to me that the reasons for the action and the order, the action taken by and the order ha nd ed down by the discipline committee will be made perfectly clear to the person who has gone through the exercise. Further to that, simply by the discipline committee hearings themselves. Further to that, there are, I submit, provisions in

Part VII which do provide for that kind of factual recorded information. There is an amendment to

Section 42, and I know that Mr. Cherniack perhaps is not aware of that yet, which does provide for a trial de novo if there is not a comp lete record and documentation and transcript of the proceedings that occurred. The suggestion that the person who was the subject of the discipline committee hearing is not protected in this case, I think is exaggerated. However, the clause in question was the subject of debate at an earlier meeting of the committee. I told Mr. Cherniack that we would review it.

We have not changed our minds about the wording of the clause, but I don't intend to be arbitrary about it or delay the work of the committee. Members are free to vote as they wish to vote, and if the consensus of the comm ittee is that we should put in a cla use specifying the provisions that Mr. Cherniack has called for, naturally I will accept that decision. I would lik e him to re-read hi s pr oposed amendment, if he would. MR. CHAIRMAN: Could we have Mr. Cherniack read his proposed amendment. MR. CHERNIACK: The amendment, Mr.

Chairman, is THAT following the word "committee" in the first line of 37(2), the words "and the reasons therefor'' shall be inserted. So it will read that "the decision of the discipline committee and the reasons therefor shall be embodied in a formal order." Mr. Chairman, the proposed changes to

Section 42 deal with a subsequent appeal before the court. I am now talking about the appeal to the board, and I point out to you that the member may not know what the reasons for the decision were because the member will not be allowed to be present during the delib erations of the complaints committee, nor do I believe that that is part of the transcript of the evidence. There will be evidence, there will be cross­ examination, informal, hearsay evidence, affidavits, whatever will be brought in will be considered.

Then the discipline committee will exclude the party and will sit as a discipline committee, probably with an advisory lawyer, and will say, "N ow, how do we feel about this." Then they are going to decide how they feel about it. But nobody is going to know their reasons unless they go out and divulge them, which I don't think they - I mean individually - go around and have dif ferent reasons. When it goes to the board, the board won't have the discipline comm ittee there justifying its decision.

The board will have two contending parties, probably represented by lawyers, each one suggesting what he think s the discipline committee, what its reasons were. And I really don't even know what the problem is here. I really thought that this would be automatically accepted as being logical, but if it isn't, we are going to have to fight it out, I guess. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr.

Chairman, it is inconceivable to me that a person could appear before a discipline committee and be involved in a disciplin ary hearing and not kn ow the reasons why there was a discipl inary order im posed against him or her. But I do not intend to see Bill 65 founder on this point. I concede Mr. Chernia ck 's point and Mr. Desjardins' point, and unless you want to call for a vote, there is no need to vote on it, the amendment is acceptable, Mr. Chairman. MR. CHERNIACK: Thank you very much. 166

Wednesday, 23 July, 1980 MR. CH AIRMAN: 37(2). amended pass; 37(3) pass. agreed to as MR. KO VNATS: Mr. Chairman, would you be disposed to allow the committee a five -minute break . . . ? MR. CHAIRMAN: Is that the wish of the committee that we break for five minutes or less? (Agreed) I call the committee to order. MR. RANSOM: Mr. Chairman, what is the plan? Are we not meeting tonight as planned? MR. SHERMAN: We are going to go as far as we can between now and 5:30 on 65; if we don't finish it, we will be back in here on 65 at 8:00 o'clock tonight. If we do finish it, we won't be back in here tonight. MR.

DESJARDINS: We will have the amendments and finish 66 and 87 during the same sitting. MR. CHERNIACK: Mr. Chairma n, as far as I understand it, we are supposed to be back here at 8:00 regardless of anything; I think we are supposed to be in the House at 8:00. MR. SHERMAN: Right. MR. CHAIRMAN: I call the committee to order. We are now dealing with

Section 38. 38(1) pass - Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT Subsection 38( 1) of Bill 65 be amended by striking out the words and the figures "15 days from the date of the date of the order" in the fourth and fifth lin es thereof, and substituting therefor the words and figures "30 days from the date of service of the order." MR. CHAIRMAN: 38( 1) pass; 38(2) pass; 39( 1) - Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, it seems to me there is probably an oversight in 39 (1) .

Now we are dealing with an appeal going to the board from the discipline committee. lt seems to me that we left out the decision itself going on. I think probably it's a technical oversight. But what I said is after the word "obtain" in the fourth lin e and the order referred to in

Section 37(2). Maybe Mr. Balkaran can check it. lt seems to me it's an omission because what you're appealing from should be before the board. MR. DESJARDINS: Do you think we should add the word "decision" is that it? MR. CHERNIACK: Well, it's called "order" in 37(2). MR. BALKARAN: "In the order of the discipline committee"? MR. CHERNIACK: Formal order. Well, I said, "the order referred to in 37(2)" but it's the same thing as saying "the order of the discipline committee". MR. CHAIRMAN: Mr. Balkaran. MR.

BALKARAN: Those words to be added after word " obtained" in the fourth line, "and the formal order of the discipline committee". MR. SHERMAN: In the fourth line . MR. BALKARAN: In the fourth line. MR. SHERMAN: it's only those two or three lines in sequence there. MR. CHAIRMAN: Can we have this amendment read then again? Mr. Balkaran. MR. BALKARAN: it's after the word "obtain" in the fourth line of 39(1) add the words "and the formal order of the discipline committee". MR. CHAIRMAN: 39 (1) as 39(2) pass; 40(1) pass; 40(2) 40(4) pass; 40(5) pass; 41(1) Mr. Kovnats. amended pass; pass; 40(3) pass; pass; 41 (2) pass.

MR. KOVNATS: I move THAT subsection 41 (2) of Bill 65 be amended by adding thereto, immediately after the word "committee" in the second line thereof the words "or the complaints committee". MR. CHAIRMAN: 41( 2) as amended pass; 41 (3) pass. Mr. Kovnats. MR. KOVNATS: I move THAT subsection 41 (3) of Bill 65 be amended by adding thereto at the end thereof the words "or have participated in the investigation of the matter before the board". MR. CHAIRMAN: 41( 3) as amended pass; 41 (4)(

a) pass; (

b) pass; (

c) pass; 41 (4) pass; 41( 5) pass; 41 (6) pass; 42( 1) pass. Mr. Kovnats. MR. KOVNATS: I move THAT subsection 42( 1) of Bill 65 be amended by adding thereto, immediately aiter the word "b oard" in the fifth line thereof the words "including any order as to costs". MR. CHAIRMAN: 42( 1) as amended pass; 42(2) pass. Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT subsection 42(2) of Bill 65 be amended by adding thereto, immediately after the word "appeal" in the fourth line thereof the words and figures "including any award as to costs made under subsection 41( 6)". MR.

CHAIRMAN: 42(2) as amended pass; 42(3) pass. Mr. Cherniack. MR. CHERNIACK: All right, (3) is okay. MR. CHAirman; 42(3) pass; 42(4) pass. Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move 167 THAT subsection 42(4) of Bill 65 be amended by striking out the words "Court may hear the

Wednesday, 23 July, 1980 appeal on consideration of such material as may be available or may order a new hearing" in the third and fourth lines thereof and substituting therefor the words "appeal before a judge of the Court of Queen's Bench shall be a trial de novo". MR. CHAIRMAN: 42(4) as amended pass. Mr. Cherniack. · MR. CH ERNIACK: Mr . Chairman, I may have misread this amendment. I'd like to reread it and maybe I can save a lot of time for the committee if it reads as I now think it does. I wonder if Mr. Kovnats could read the whole

section as it would appear when amended. MR. CHAIRMAN: Mr. Kovnats. Mr. Balkaran. MR. BALKARAN: Mr. Chairman, 42(4) in its entirety would read as follows: "W here the evidence of the hearing or inquir y was not red uced to writing otherwise mechanically recorded, or why it was so recorded, but a transcript thereof cannot be obtained, the appeal before a judge of the Court of Queen's Bench shall be a trial de novo". MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: I'm sorry, I don't find that adequate in my way of thinking. What it means, this is the way it will work.

The discipline committee will meet, possibly in private, with its own rules of evidence, approved by the board; will hear a case; will make a decision and now we know it will give written reasons; then the appeal will lie to the board; the board will not hear any of the evidence, will not hear any of the witnesses, unless it decides to, but is not expected required to, will read the transcript and will read the reasons for the decision and will make a finding. Now it goes to the Court of Appeal.

The Court of Appeal gets a transcript of what went on; has no opportunity to see the witnesses; has no opportunity to come to its own conclusions as to whether everything was properly explored; has no op