Monday, November 30, 1987 - 1:30 p.m.
Speaker: I will now call the House to Order.
We will proceed with Prayers.
Speaker: We will proceed at this time with the Order Paper. Introduction of Visitors?
TABLING RETURNS AND DOCUMENTS
Speaker: I have for tabling a report from the Clerk of the Assembly which is made pursuant to Section 39(6) of the Legislative Assembly Act.
Are there any further documents?
Hon. Mr. Penikett: I have for tabling the text of my address to the First Ministers Conference last week in Toronto.
Hon. Mrs. Joe: I have for tabling answers to questions asked by the Member for Riverdale North on November 18.
Speaker: Are there any reports of committees?
Are there any petitions?
Introduction of bills?
Are there any notices of motion for the production of papers?
Are there any notices of motions?
Are there any statements by Ministers?
This then brings us to the Question Period.
Question re: Territorial Court Act
Mr. Phelps: I have a few questions with regard to the dismissal of Mr. Thompson as Justice of the Peace by a letter dated September 8, of this year. The Minister of Justice has stated categorically, on many occasions, in this House, that the court administrator who signed the letter received his instructions from the Chief Judge of the Territorial Court to send the letter.
By letters that have been made public now, dated November 27, 1987, Judge Ilnicki categorically denies that she gave those instructions, so my question to the Minister is a very simple one: who instructed the court administrator to send the letter dated September 8?
Hon. Mr. Kimmerly: The information I have from the court administrator, Mr. Williamson, is that Judge Ilnicki instructed him to send the letter of September 8.
Mr. Phelps: That is categorically denied by the Chief Judge, Judge Ilnicki, and she supports her denial - if such support is needed - in the following way, and I quote from the letter dated November 27 to Mr. Thompson: I did not instruct Mr. Williamson, or anyone else, to send the letter. This fact is confirmed by the letter itself, which states that Williamson was, by a copy of this letter, also informing the Chief Judge of the Territorial Court of Yukon.
My question of the Minister is: does not that statement in the letter bear out the veracity of the claim made, the position taken by the Chief Judge?
Hon. Mr. Kimmerly: No, in answer to the specific question. There is clearly an inconsistency here. There is clearly a case where there are contradictory statements made by different people.
That is clear. On the basis of information I have received, which I believed at the time and still believe, is that the letter of September 8 was instructed to be sent by the Chief Judge. I am relaying that information to the House exactly as I have in the past.
Mr. Phelps: According to an article in the Whitehorse Star dated September 29, 1987, we have a quote of the Deputy Minister of the Justice department in which he says, Legally, him sitting and rendering decisions would be a nullity, Byers said. We, in essence had to relieve him of his duties because any decision he made would be void.
Who was the Deputy Minister speaking on behalf of when he said, we had to relieve him of his duties because any decision he made would be void.
Hon. Mr. Kimmerly: He was not speaking on my behalf. The situation is that Judge Ilnicki and the court administrator discussed the situation at the initiation of the Chief Judge. Those discussions occurred on several occasions. The court administrator obtained a legal opinion in the Department of Justice. That legal opinion was given to the judge, and the judge later instructed Mr. Williamson to a course of action regarding sending a letter.
That is an account of the facts as I am told.
Question re: Territorial Court Act
Mr. Phelps: The article goes on and has a quote from the Minister of Justice that says, We have to clarify that (clause). Until that is clarified, the safest course of action is to have people over 65 not sit. Both statements seem to convey a policy of the department. Was it departmental policy as early as September 8 of this year, that people over the age of 65 not sit?
Hon. Mr. Kimmerly: No, it was not. Judge Ilnicki and I had a conversation prior to September 8 and I expressed two positions: one position is that the Territorial Court Act and the Human Rights Act are inconsistent, and the government does not support a policy of mandatory retirement. The second position I expressed in clear and categorical terms is that whoever sits in the JP court is a judicial matter and is to be determined by the Chief Judge and the Chief Judge alone.
Mr. Phelps: Is the Minister saying that conversation took place between the Minister and the judge prior to September 8, 1987?
Hon. Mr. Kimmerly: Yes.
Mr. Phelps: Can the Minister advise this House when he first found out about the letter of September 8?
Hon. Mr. Kimmerly: I found out from a reporter. It was either on September 8, 9 or 10. I believe it was either September 8 or September 9. I had no knowledge of that letter prior to being told by the media.
Question re: Municipal block funding
Mr. McLachlan: I have a question for the Minister of Community and Transportation Services with regard to block funding. When does the department decide that it will pay for a capital project, or when does the municipality have to pay for it out of its share of the block funding?
Hon. Mr. McDonald: I am not sure of the intent of the Members question. I am not clear what sort of answer he is seeking. Basically, all municipal works are to be covered out of block funds to the municipalities except as provided for through the Municipal and Community Infrastructure Grants Act. That Act has a clause in it which stipulates that for projects that are greater than two and a half times the size of the block funding in a given year, they can be eligible for additional funding assistance by the Government of the Yukon. Beyond that there were some old commitments that the government had undertaken that would fall outside the block funding arrangement, which ought to be wrapped up this coming year. I speak specifically of the commitment such as Mountainview Drive.
Apart from that all municipal works are to be undertaken through the municipal block fund.
Mr. McLachlan: I asked because in the past some of the communities have borrowed heavily for water and sewer programs, both to install and to upgrade. It has left them in a substantial position of municipal debt compared to some situations. For example, in the municipality of Mayo, they were given $1.7 million to upgrade the same water and sewer lines. I have asked the question with respect to what appears to be some inconsistencies or inability to rationalize that. Can the Minister explain that further?
Hon. Mr. McDonald: I would not categorize any municipality as having gone into substantial debt in order to upgrade their water and sewer systems. Some communities have incurred some debt - Faro included, Whitehorse, and a couple of others - to undertake certain municipal works in the past. That is an avenue that is open to municipalities today that, under the provisions of the Municipal Act, they can undertake debt obligations in order to undertake large municipal works.
In Faros case, it is hard to draw parallels between what is happening now and what has happened in the past because of the idiosyncrasies of the funding arrangements amongst communities over a long period of time, but there are communities today that can undertake debt in order to upgrade their facilities. Alternatively, they can save up to provide for certain municipal works.
Mr. McLachlan: I am sure the Mayor of Dawson City would be interested in that answer, where the Minister has definitely told him that the municipality must repay the debt regardless of water and sewer problems. With respect to what the Minister has just said, where the project must be two-and-a-half times the size of the municipal block funding - for example, a sewer outfall project at Teslin is not two-and-a-half times the size of the municipal block, yet it qualifies for $340,000 worth of territorial government help. Can the Minister explain that situation?
Hon. Mr. McDonald: Yes, I can. Firstly, I did not mean to intimate that if a municipality incurs debts, it should not have to repay them. It goes without saying that, if a municipality does take on a debt obligation, it should repay it.
With respect to Teslin, the pumphouse in question provides water primarily for the Highways camp. The Member will note that the expenditure was quoted under the Transportation Capital Program in last years Capital Budget.
Question re: Territorial Court Act
Mr. Phelps: With respect to the issue of the JP firing and the letter of September 8, 1987, will the Minister of Justice tell us when he first saw this letter.
Hon. Mr. Kimmerly: After I found out that there was a letter, I made a call to obtain a copy, and I obtained a copy that day. I do not remember the specific day but it was very soon after September 8, 1987.
Mr. Phelps: Upon obtaining a copy of the letter, did the Minister have any subsequent conversations with the Chief Judge, Judge Ilnicki with regard to the contents of that letter?
Hon. Mr. Kimmerly: No, not until a meeting that occurred on Friday, November 27, and we did not specifically discuss the contents of the letter but I had no discussion with the Chief Judge at all about that letter. I did have a meeting that occurred over lunch with all three of the judges. That was subsequent to September 8, at which time we discussed, generally, the concept of mandatory retirement for justices and judges and term appointments. We did not specifically discuss that letter.
Mr. Phelps: Did the Deputy Minister of Justice have conversations with the Chief Justice about the letter dated September 8, 1987?
Hon. Mr. Kimmerly: I have no knowledge of that, and the Deputy Minister is on holidays. He is returning on Thursday, and I will ask him.
Question re: Territorial Court Act
Mr. Phelps: The letter dated September 8, 1987 from the Chief Judge to Mr. Thompson states, in part, The Department of Justice, Court Services Branch, would like to offer you three months remuneration. This amount will be three times the average monthly amount you have received over the past year for your duties as a justice of the peace. Surely, that statement is a policy and required a policy decision. Who made that decision?
Hon. Mr. Kimmerly: I asked the same question after I learned of the existence of the letter, and that approach was suggested by a lawyer in the Legal Services Branch to Bill Williamson, the Court Administrator. It was accepted by Mr. Williamson, who informed me that he showed that letter to the Chief Judge before it was sent. He also showed it to the Deputy Minister as well before it was sent.
Mr. Phelps: I would like to pinpoint that a little more. When he says, He showed that letter, is that the letter of September 8 with the offer of three months pay in it?
Hon. Mr. Kimmerly: Yes.
Mr. Phelps: Then the Deputy Minister of the Department of Justice was aware of this letter prior to it being sent, and sanctioned one of the policy decisions in it?
Hon. Mr. Kimmerly: I had no conversation with the Deputy Minister about the sense of it, but I have had a direct conversation with the court administrator and he has informed me that he - that is, the court administrator - showed the letter to the Chief Judge and to the Deputy Minister and at that time he was acting at the initiative of the Chief Judge.
Question re: Territorial Court Act
Mr. Phelps: Well, the very important point here, Mr. Speaker, is that the person who is the court administrator was acting with the sanction and within the policy guidelines of the day of the Department of Justice, at least with regard to the remuneration, if not with regard to mandatory retirement. Is that not correct?
Hon. Mr. Kimmerly: I am not sure I would put it in exactly those words, but it was certainly the case that officials in the department knew about that letter and did not take any steps to stop it. I only wish that I had known.
Mr. Phelps: The Minister knows about the British parliamentary principle of ministerial responsibility, but I would like to know - I am sure he knows about it - whether this payoff of three months remuneration has ever been done before, at least in the last couple of years, for a justice of the peace who is retiring.
Hon. Mr. Kimmerly: I have no knowledge of that. I would doubt it has, but I will check.
Mr. Phelps: Was the lawyer in the department who made the suggestion about the remuneration instructed by the court administrator, or was he instructed by some other official in the department to prepare that letter?
Hon. Mr. Kimmerly: The course of events was that the judicial administrator asked for a legal opinion concerning the validity of Mr. Thompsons appointment after his sixty-fifth birthday, and, subsequently, the communication between the various officials about the letter is not something that I have a particular knowledge of, Mr. Speaker.
Question re: Territorial Court Act
Mr. Phelps: Would the Minister provide us with details of who received copies of that letter? Who was it sent to within the department, and when?
Hon. Mr. Kimmerly: Yes, I can do that.
Mr. Phelps: I would like to move on to a new question that has to do with the rather strange chain of events that has taken place in the last number of days. We are advised in rather broad brush strokes by the media that the Justice of the Peace in question, Mr. Thompson, has been reinstated. What is interesting is that both letters - the letter to the Minister and the letter to the Justice of the Peace - state that Since Mr. Williamsons act of writing the letter to Mr. Thompson was authorized by neither the government, nor by me, it follows that the letter is of no effect. I take it that because the letter is of no effect, what the government is saying is that Mr. Thompson has never really been fired or dismissed from government services. Is that what follows?
Hon. Mr. Kimmerly: I do not think so. The statement that, It follows the letter has no effect is problematic. I think the letter certainly did have an effect when it was sent and the situation as it exists now is uncertain. Looking to the future, it is absolutely clear to me that there still needs to be a change in the law, specifically to the Territorial Court Act to change the mandatory retirement age.
Mr. Phelps: Getting back to the question, it seems to be that the Judge is saying, Because I did not instruct this firing letter of the 8th to be sent, it has no effect, and therefore, Mr. Thompson, you are still a JP.
The problem is that the government denies that. The government says that it was sent on the instruction of the Chief Judge. The point I am making is that if the government is taking that position, then the letter has effect and Mr. Thompson is not a JP. Is that not correct?
Hon. Mr. Kimmerly: Mr. Thompson was appointed a JP. That appointment has not been revoked by the government. The operation of the law, specifically the mandatory retirement age, is problematic in that we have inconsistent laws on the books. The practical question is, is Justice of the Peace Thompson going to preside over cases. That question is entirely up to Chief Judge Ilnicki, and she is, by the terms of the letter of November 27, saying that he will sit.
Mr Phelps: The whole thesis that he will sit is based on what the government says is a false premise. The government says that the judge did instruct the letter to go. If that is the case, the Justice of the Peace was dismissed. Is that not true?
Hon. Mr. Kimmerly: Not necessarily. I do not agree. The letter of September 8 was sent, and the practical effect of it is that Mr. Thompson did not sit. I believe the practical effect of the letter of November 27 that is he will sit. Those are the consequences of those letters.
Question re: Territorial Court Act
Mr. Phelps: If the government is insisting that the Judge instructed that the dismissal letter go forward, then Mr. Thompson - right now - has been dismissed. This letter to Mr. Thompson, as well as the letter to the Minister, both dated November 27, have no effect because they are based on a false principle.
The letter is saying Mr. Thompson was never dismissed. Why? Because the Judge did not instruct that the dismissal letter be sent. The Minister is saying the Judge did instruct that the letter be sent. Therefore it follows, inescapably, the Judge was dismissed. In view of this conflicting state of affairs that we have, what is required is for the Judge to say he is reinstated. Otherwise, the government cannot pay Mr. Thompson for his services, because they are maintaining he was properly dismissed.
Hon. Mr. Kimmerly: I will interpret a question from that speech. Justices of the Peace are appointed by an Order-in-Council. Neither the Judge nor the government has any power to dismiss a justice, except by an Order-in-Council. There has never been an Order-in-Council dismissing Justice of the Peace Thompson.
Mr. Phelps: On November 18, the Minister spoke to second reading of a Bill that had ramifications to this matter in the House. On page 92, he stated in part, The court administrator received instructions from the Chief Judge of the Territorial Court to send such a letter. The letter was sent. I found out about the letter after reports made in the media. Because the letter was sent, clearly, Mr Thompson was dismissed.
The Minister said the only way to cure this is to change the Territorial Court Act. I do not understand what the Minister is saying. Is he now trying to tell the people of the Yukon that everything before was simply a situation where he misspoke himself, that Mr. Thompson was never dismissed and remained a justice of the peace through all this?
Hon. Mr. Kimmerly: There is a lawsuit existing now about this incident. The letter of September 8 is problematic for various reasons, one of them being that there is no power to dismiss a justice of the peace except by Order-in-Council. That is a significant fact that will probably be discussed in the lawsuit, if it proceeds now, and is a fact which the Member opposite is not considering in the proper light.
Mr. Phelps: Is it not interesting that the Minister has never taken a public position before today that Mr. Thompson was never dismissed.
Was Mr. Thompson paid the three months send-off bonus that was referred to in the letter of September 8?
Hon. Mr. Kimmerly: There was a statement implying a question and, then, a question. I will reply to both. I have always considered the letter of September 8 problematic. The questions that I have answered today were never put previously. In answer to the question about payment, I do not specifically know. I expect he would have been; however, I will check that and get back to the Member.
Question re: Territorial Court Act
Mr. Phelps: It is very apparent that the Deputy Minister of Justice, in the interview in the Whitehorse Star on September 29, was speaking for the department, and I will repeat it. He said, Legally, in sitting and rendering decisions would be a novelty, Byers said. We in essence had to relieve him of his duties because any decision he made would be void.
At that time, surely the department was of the opinion that he had been relieved of his duties because of the letter of September 8? That is your department.
Hon. Mr. Kimmerly: Yes, I believe that is a fair conclusion, and that is, in essence, the legal opinion that was created within the department. It is a legal opinion that I do not share, and it is clear that I am responsible for the department. I can tell Members the confusion is substantially embarrassing. However, it will be corrected.
Mr. Phelps: The Minister who did not read the letter and did not even know about it on September 29 said, and I will repeat this: We have to clarify that clause but until that is clarified, the safest course of action is to have people over 65 not sit. Kimmerly said.
So surely, Mr. Speaker, that was the policy of the department: until it is clarified, have people of 65 not sit. That is what it says to me.
Hon. Mr. Kimmerly: The policy of the department, I believe, is determined as a matter of law, and that is that who sits in the court is a decision made by the Chief Judge, and the Chief Judge alone. Now, after the letter of September 8, I took the position, on its face, to be that the position of the court was that the safest course of action was to have Mr. Thompson not sit until the law is clarified. In fact, I believe that to be a fair statement; however, the policy is that the decision should and will be made by the Chief Judge.
Mr. Phelps: The trail here leads to high places, Mr. Speaker. The Deputy Minister shared in reviewing the letter before it went. Not only that, but he made at least one of the policies contained therein, to get the three months remuneration. So surely it was a department decision, at least in part.
Hon. Mr. Kimmerly: That is not a question, but in light of the tenor of this debate I will repeat that the initiative came from the Territorial Court and that the court administrator carried out the judicial administration, in accordance with his duties.
Question re: Territorial Court Act
Mr. Phelps: And how does the Minister explain the two letters of November 27: one to himself from the Chief Judge; one to Justice of the Peace William Thompson?
Hon. Mr. Kimmerly: There is an inconsistency: different people are saying different things; that is obvious.
Question re: Land development
Mr. McLachlan: I have a question for the Minister of Community and Transportation Services on land development. When the department is planning an urban land development, do they, as a matter of policy, plan for multiple unit dwellings within that, or do they not do so until a request is made for multiple unit land?
Hon. Mr. McDonald: The issues are determined by the municipality that will determine zoning requirements of an area. The decision is made jointly between the land developer, which is often the Yukon government - but it does not have to be - and the municipality involved.
Mr. McLachlan: The Minister has said on previous occasions that he wants to consider all sectors fairly. That is one that has not had much of an opportunity at land. Are there any plans in the Granger subdivision to develop multiple unit dwellings or are they all single family residential dwellings?
Hon. Mr. McDonald: In the Granger area, the zoning and the plans call for single family residential construction.
Mr. McLachlan: It seems that sometimes the issue may revolve around a chicken and egg situation. If land is set aside, there may be a response for the multiple unit, if it is not, nothing may result. Does the Minister feel that the only way to assist in the development of multiple units is to make the municipality the only authority to determine whether or not that demand is there? Should there not be others who are allowed to express an opinion, such as private developers?
Hon. Mr. McDonald: Private developers can express an opinion on what should be constructed in one location or another. The municipality has the power to determine zoning requirements in an area, and it is they - and they, alone - who make the decision as to whether or not multiple family residential or single family residential construction will take place in a given area. They must develop a community plan and zoning must conform to the community plan. It is the municipal council that will make the final decision as to what land development takes place and where.
Speaker: Time for Question Period is now elapsed. We will proceed with orders of the day
ORDERS OF THE DAY
Bill No. 4: Third Reading
Clerk: Third reading, Bill No. 4 standing in the name of the hon. Mr. McDonald.
Hon. Mr. McDonald: I move that Bill No. 4, entitled Public Libraries Act, be now read a third time and do pass.
Speaker: It has been moved by the Minister of Education that Bill No. 4, entitled Public Libraries Act, be now read a third time and do pass.
Motion agreed to
Speaker: I declare the motion carried and that Bill No. 4 has passed this House.
Bill No. 52: Third Reading
Clerk: Third reading, Bill No. 52, standing in the name of the hon. Mr. McDonald.
Hon. Mr. McDonald: I move that Bill No. 52, entitled An Act to Amend the Municipal Act, be now read a third time and do pass.
Speaker: It has been moved by the Minister of Community and Transportation Services that Bill No. 52, entitled An Act to Amend the Municipal Act, be now read a third time and do pass.
Motion agreed to
Speaker: I declare the motion carried and that Bill No. 52 has passed this House.
Bill No. 80: Third Reading
Clerk: Third reading, Bill No. 80, standing in the name of the hon. Mr. McDonald.
Hon. Mr. McDonald: I move that Bill No. 80, entitled Act to Amend the Assessment and Taxation Act, be now read a third time and do pass.
Speaker: It has been moved by the Minister of Community and Transportation Services that Bill No. 80, entitled Act to Amend the Assessment and Taxation Act, be now read a third time and do pass.
Motion agreed to
Speaker: I declare the motion carried and that Bill No. 80 has passed this House.
Hon. Mr. Porter: I move that the Speaker do now leave the Chair and the House resolve into Committee of the Whole.
Speaker: It has been moved by the hon. Government House Leader that the Speaker do now leave the Chair and the House resolve into Committee of the Whole.
Speaker leaves Chair
COMMITTEE OF THE WHOLE
Chairman: Committee of the Whole will now come to order. We will now recess for 15 minutes, at which time we will return to discuss Bill No. 9, the Change of Name Act.
Chairman: Committee of the Whole will now come to order.
We are on Bill No. 9.
Bill No. 9 - Change of Name Act - continued
Mr. McLachlan: Some details get more and more complicated when you get into this Act. Can the Minister advise when a person changes his or her name, do they retain the same federal social insurance number or must one also reapply for a new number under the new name?
Hon. Mrs. Joe: It is my understanding they retain the social insurance number.
Mrs. Firth: There were some outstanding questions from the debate when we last sat. I wonder if the Minister is prepared to answer those questions?
Hon. Mrs. Joe: There was one question from the Member for Porter Creek East with respect to Legal Services and the amount of time you have to wait to get a new name. Legal Services has responded by saying administrative obligations are not given time frames within statutes, and accordingly acting within a reasonable amount of time is implicit. Should a person be dissatisfied with the speed of an administrative response he or she can seek a mandamus from the courts.
Mr. Lang: It is one thing for the civil service to say that and then we come to the cloudy area: what is a reasonable length of time. That was my question. The administration has five or ten days to research a thing and within those ten days you have a requirement, under law, to get back to Mr. Lang who is asking for that name change. That goes for any legislation then: we do not have to put any time frames in because it is just understood that it is supposed to be a reasonable period of time. The question is to whom?
That was the question I put. In your estimation is five days reasonable, is twenty-four hours reasonable?
Hon. Mrs. Joe: The time required, for the registrar and others in that department, to get that information together would be a fairly reasonable time. I would say that a reasonable amount of time, although it is not listed anywhere, would be within ten days because the information is right there and the information that is asked for on the application form really does not have anything in there that is controversial that you would want to check back on, such as the other one was to the Supreme Court.
Mrs. Firth: I asked some questions that the Minister was not able to answer. After a week of the House not sitting, I would have expected that she would have come back with the answers to those questions and I would like to know if we are going to get some answers?
Hon. Mrs. Joe: On the issue of the name change being Gazetted, it is to ensure that there is a source people can reference, a place where a search for various changes can be done by members of the public, law enforcement officers, creditors, et cetera without seeking specific information on specific persons by way of a request for a search of the register. The search is a guard against fraud or possibly injury occurring to other people as the result of granting a name change.
Mrs. Firth seized on the issue of costs at one point during the debate, and for the applicant costs will obviously be lower as the administrative fee will certainly be less than the cost of retaining a lawyer combined with court costs. That is our new Act as opposed to the procedure that we have to follow right now. For the government, we already register changes of name ordered by the courts and undertake the interjurisdictional information exchange respecting name changes.
The only additional items will be the cost of the application forms, the cost of the certificates and the time involved in processing the applications. Staff time is adequate to absorb this function with no increase in person years or salary dollars; additional O&M is only a few hundred dollars per annum for required forms - that cost can also be absorbed.
On the number of changes of name, as was requested by the Member for Riverdale South, the fact is that the numbers vary considerably from year to year but are very small - typically less than 40. However, the small numbers are indicative of the barrier presently in place. The department is constantly receiving requests for name changes - changes which the persons do not pursue as they are not prepared to face the complexity and cost associated with the Supreme Court application. As a result of an article in the paper regarding the name change - which, of course, has not passed the House or been consented to - there was an individual who had already come forward requesting that they have their name changed through the new process.
One of the main reasons why the act needs to be overhauled: in the provinces, men and women can exercise the right to a simple and inexpensive change of name; in the Yukon they cannot, under the present Change of Name Act.
The answers to why: Saskatchewans act was the one that we informally used as a guideline and is a bit similar to it. The act was attractive from a policy point of view because it was a recent piece of legislation that strove for maximum simplicity and ease of public access to the change of name process. Uniform law is also important to us since changes in names need to be consistent across provinces in order to have full legal effect, for example: a Yukoner, born in B.C., could not have their birth certificate changed on the basis of a Yukon Change of Name Order unless the name was in the proper form from the perspective of the B.C. Statute. Without the birth certificate change, other important changes such as a name a passport is issued in cannot be made.
There was a suggestion made by the other side of the House that, at that point in time, we did not have a policy on what we did when we changed our legislation, and that we just gave it to lawyers and asked them to change it for us. That was made specifically to the public. That is not the case. I explained to her many times it was to conform with the Charter of Rights and there were uniform law reasons for it.
Mrs. Firth: Does the Minister realize that the last comment she tried to read out confirms that there is no policy. She has to read it on a piece of paper and she cannot even read the word on the piece of paper. I really have my doubts.
The Minister briefly mentioned something about additional Operation and Maintenance costs that could be absorbed. Could she give us some idea of how much money we are talking about and how much of an increase in requests the department has predicted, and how they are expecting the costs to increase?
Hon. Mrs. Joe: I do not think there will be any significant increase at all. Anything we do under this new Act would possibly put a smaller load on individuals. I cannot say that for sure.
There are new forms that we have had to make, but I do not think that is very significant. There will be new forms that fall under the regulations. There was a suggestion that we might need an additional half person year. We have since decided that probably would not be necessary.
Mrs. Firth: If that is the case, it gives more validity to the concern that the Member for Porter Creek East raised. If they were anticipating they were going to need a half person year more because there was going to be a huge demand for name changes due to this great piece of legislation, and are now not going to be giving half a person year - if there is a tremendous increase in demand, I would expect that the individual who is responsible for it is going to fall behind. It is at the discretion of the individual handling the request as to how long they want to take to process an application. Someone could wait as long as that individual wants them to wait for that procedure to follow through.
Hon. Mrs. Joe: I think that is putting the cart before the horse. We do not know exactly how much extra work will be anticipated. If we find that the load is too much for the individuals who are doing it now - we have not asked for any new person years for the past couple of years - there is a possibility that we may have to do that. Otherwise, we may have to look in the department to find another one half person year somewhere.
Mrs. Firth: It is not putting the cart before the horse. I am trying to find out on what basis this legislation was rewritten. The Ministers department should have done the analysis as to whether or not they were going to need the additional person years and how many requests they were going to have. The rationale that the Minister is giving is that people could not get their names changed in an economical way. They were not making the request, and I understood that this would change that. It does not seem that the government has done a thorough analysis of that issue. One does not just bring a piece of legislation in here without any analysis as to what the potential costs could be for the taxpayers of the Yukon Territory.
I would like to have some comments from the Minister about the questions that were asked regarding the authority of the registrar, too. She has brought back no information about those questions.
Hon. Mrs. Joe: I do not recall which section that was. Is it in the section that we are dealing with now - fraud or misrepresentation - in clause 18? We are talking about the authority that the registrar has to determine that.
Mrs. Firth: When we last discussed this Bill, both the Leader of the Official Opposition and I asked questions about the authorities of the registrar. They were discussed in clause 9, too, where the registrar has the ability to make an opinion about the application as to whether or not it is misrepresentative or is sought for fraud or unlawful purposes.
In clause 18(1), we talk about fraud and misrepresentation and how the registrar considers things appropriate. We discussed what the authorities and powers of the registrar were going to be. The Minister did not answer our questions at that time, and I would like to know if she can now, a week later.
Hon. Mrs. Joe: We have already cleared clause 9(2) and we are now in clause 18. We are still talking about the powers that she does have. She will be the person who will make a decision on information from the applicant, whether or not that person will be approved to have their name changed. She will have that authority to make that decision rather than the courts, as was the situation in the past.
Mrs. Firth: Just to refresh the Ministers memory, the questions were: what authority does the registrar have; can they do credit checks; can they do police checks of individuals that come forward; and how do they determine whether the application is done for fraudulent or misrepresentative reasons, or whether it is a legitimate application? What powers do they have to make that determination?
Hon. Mrs. Joe: The registrar could do some of those checks but the registrar probably would not. They are more likely to be done by someone who would come in with an order to search some kind of a record, and that would be done possibly by whomever wanted that kind of information. I think that we have talked about that in some other section of this act.
Mrs. Firth: It would appear that the Minister has taken a week off to have a vacation because she has not done her homework; she has not answered our question. Am I to conclude, from the answer that the Minister gave me, that the registrar has the authority to do a police check or a credit check on an individual when they come to request a change of name?
Hon. Mrs. Joe: If there were circumstances that demanded it, she would have the authority to do that. If she received information in regard to something that may be in an application - as I mentioned before, something such as a passport name, or a misrepresentation of some other person, or something - she would have the authority to make that kind of a check.
Mrs. Firth: This act says that the registrar will have the authority to do that without any of the attachments that the Minister is putting forward. This act does not say: that, based upon some information that is given to the registrar; this act says that: the registrar, in their opinion. I want to know if the registrar, in their opinion, has total authority to do a police check, or a credit check, on an individual coming forward and requesting a name change.
Hon. Mrs. Joe: The registrar would not have the authority to do a credit check. I do not think that that would be included in any kind of an application when somebody wanted to change their name, and if there was a concern from some other person that the applicant could not change his or her name for some reason, I do not think that that would in any way affect what the decision would be to change the name, but she would not do a credit check.
Mrs. Firth: Can the Minister tell me where, in this Bill, does it say that the registrar will not be able to do that? It does not say that anywhere in this Bill.
Hon. Mrs. Joe: It does not say in here, either, that she will.
Mrs. Firth: That is precisely why I am asking. If you read it as it stands now, I interpret that they will. We, on this side, interpret that they will have all exclusive powers and authorities, because there is nowhere in the Bill that it defines the power and authority of the registrar. It says, In the registrars opinion. The government is not putting any caveats or restrictions or limitations or exemptions on the registrars opinion. Therefore, that opinion is wide open, and the Minister has already said that the registrar will have the ability to look for credit checks and police checks. Now she has stood up and said they will not able to do that. It does not say anywhere that they will not be able to do that, so where is she getting that information from?
Hon. Mr. Kimmerly: On a matter of statutory interpretation: it is never the case that an office is identified; for example, a registrar and any list of things that a registrar cannot do, follows. That never occurs in any legislation. The registrar has the same powers as any other person, and has no greater powers. There is no power granted in the Act to do the things which are spoken of. The legitimate interpretation of this Act is that, if the registrar is not specifically granted a power, they do not have statutory authority to carry it out and there is no special power.
Mrs. Firth: Why is the Minister not saying that, then? She is bringing this Bill in here and sponsoring it. Why is it that the Minister of Justice is standing up and saying that? The Minister has said that they would or they would not. She has said that they would have those powers, then she said they would not be able to do a police check or a credit check. What is the Minister doing? Is she just getting up and saying anything in the hope we will accept it as a reasonable answer and stop asking questions?
Hon. Mr. Kimmerly: I got up in answer to the question because Mrs. Firth gave a legal interpretation of the effect of the statute which was erroneous, and I corrected that. That is why I got up.
Mrs. Firth: It may be erroneous according to the Minister of Justice, who has the opinion that any lay person who interprets a piece of legislation interprets it in an erroneous way. This legislation was written so that people could understand it. I have had people phoning me and asking me this question. So obviously, the Minister of Justice and this government is not writing the legislation in as clear and concise a form for the average person or however they term it - the lay person - to understand it and comprehend it.
Mrs. Firth: I think that it would be only reasonable to be able to respond to those peoples questions in a common language with an honest sincere answer. From the direction given from the Members opposite, I do not know what we are supposed to tell the public. What happens when an individual makes a request for a name change and then finds out that someone is doing a police check or credit check on them?
Hon. Mrs. Joe: The legislation is very clear and did not say anywhere that that person could do a credit check.
Mrs. Firth: You said it, though. You interpreted it that way.
Mrs. Joe: Yes, I did.
Mrs. Firth: I rest my case.
Mrs. Joe: If there ever was a case.
Clause 18(1) agreed to
On Clause 18
Clause 18 agreed to
On Clause 19
Clause 19 agreed to
On Clause 20
Mr. McLachlan: Under Clause 20(1) can the Minister elaborate. What is the Ministers interpretation of a substantial interest? Is that only a family interest or are there others who would have reason to put their two bits in?
Hon. Mrs. Joe: If there was some reason that some other person may not agree with that name change, then that person could make application to the court and present the case they might have.
Clause 20 agreed to
On Clause 21
Hon. Mrs. Joe: The Member for Faro wanted information on this. What this Act talks about are documents we may have right now that may have another signature on them, and being able to use them after that person has left. It has been done. There may be a stack of them that you do not want to waste. This is provision for that.
Mr. McLachlan: I believe there was a question earlier about how often a person can go back and request a change of name. How often can one apply for a name change?
Hon. Mrs. Joe: We do not have a limit. People can come to us and apply to have a name change. If there is reason enough to do it, they can change their name as long as it conforms with what our Act says they can do in terms of name changes.
Mr. McLachlan: Unless there is a statutory reason that the Minister can give, or knows why under federal legislation it does not apply, I have some cause to be concerned about that. People do run from their debts for various reasons. One of them could be changing names. I just put it forward to the government that some limit be put on the number of times one can do it annually. People do try to skip out on their responsibilities.
Hon. Mrs. Joe: The changes that we make here definitely go back to the place where the person was born, and their birth certificate is changed. Their names are in the Yukon Gazette, and allows for people to find them through that. If there are other changes, then those changes could also be listed. I think it would be highly unlikely that some individual would come to us ten times a year and want a name change. You would get very suspicious about something like that.
Clause 21 agreed to
On Clause 22
Mr. Nordling: First of all, when are we going to have the regulations?
Hon. Mrs. Joe: The draft is in its final stages now. The Member for Riverdale South has copies of the forms that will be covered under those regulations. That is just about what is going to be in the regulations. They are almost finished. There may be a couple of minor changes made in the forms.
Mr. Nordling: I see that the regulations are going to cover forms, fees and other information, and I do not see it in the Act. What happens to a person who attempts to obtain a change of name under this Act fraudulently or through misrepresentation?
Hon. Mrs. Joe: It would depend on what the information was that came to the registrars attention. If there was reason for it, that application could just be denied.
Mr. Nordling: There is no penalty or offence. Under this Act, a person can apply to change their name fraudulently or through misrepresentation, and the only penalty is that they would have their application turned down. Under the previous Act, it was a summary conviction offence, and the person was fined not exceeding $500. Why is a provision like that not included in this Bill?
Hon. Mrs. Joe: The Act would allow for less red tape. If there was an Act of some other type that would be covered under the Criminal Code, it could possibly be dealt with under the Criminal Code.
Mr. Nordling: Is there a provision in the Criminal Code that takes care of this if someone does attempt this under our new Act?
Hon. Mrs. Joe: Yes, if it was fraud.
Mr. Nordling: Would that apply also to misrepresentation or for an improper purpose? The Minister has not told us what the registrar will use, if it is in his opinion. We have attempted for days to try and decide what the registrar will use to base that opinion on. Now, it is not an offense unless it is a criminal offense. Is that what the Minister is saying?
Hon. Mrs. Joe: I did not say it was not a criminal offense. If it is not indicated in here, there are other avenues one could seek to deal with someone who is committing fraud in trying to change their name.
Mr. Nordling: Could the Minister outline those avenues for us so that we can pass that on to those who would like to know?
Hon. Mrs. Joe: If the issue at that time was fraud, then that could be charged under the Criminal Code. There is also provision in this Act for a person who is turned down by the registrar to go to the Supreme Court.
Mrs. Firth: The Minister is talking about two different things now. Who lays the charges of fraud, and under what or where? All the registrar does is deny the request. She has said there are other avenues but did not say what they were. Who follows up on that, or do they just approve every application and hope that nobody ever comes to them to raise any questions?
Hon. Mr. Kimmerly: The Members opposite complain on occasion about the government creating new offences and new regulations. Here, we are removing one. It is not necessary to make it an offence. I do not recall any charges ever being laid under the old offence. It is not necessary. If the circumstances amount to a fraud, the Criminal Code will cover it. If the circumstances do not amount to a fraud, it is not necessary to have any prosecution.
Clause 22 agreed to
On Clause 23
Clause 23 agreed to
On Clause 6
Chairman: Clause 6 was stood over. We will deal with it now.
Hon. Mrs. Joe: She was the one who asked to have it held over, not I.
Mrs. Firth: With all due respect, the Minister was supposed to bring back more information with respect to that clause.
Hon. Mrs. Joe: I gave her the information during the debate on that section, and she did not agree with it, so she wanted to bring it back.
Mrs. Firth: I think if you go back to the debate, Mr. Chairman, you will find that we asked where the equivalent clause was in the old Act. We asked if it was the intention of this government, if it was their policy direction, to have people give their name to children without adopting them. We asked the questions and she was to come back with the answers. Obviously, she has not.
Hon. Mrs. Joe: It is our policy to do that. There are circumstances that make it a lot easier for the child and a lot easier for the family. It has been done before. It is nothing new. It happens, and I agree with it.
Mr. Nordling: The Minister said that this provision was also in the old Act. It would help if she could just point that out to us, and we would know that we were not changing anything.
Hon. Mrs. Joe: I was referring to the Childrens Act. This Act does not specifically deal with foster parents who have a child and have had name changes, but it does refer to adopted children whose family may have a subsidy given to them after the adoption. We got into a bit of a debate with respect to that.
Mr. Nordling: I take it that the Minister was mistaken when she told us it was in the old Change of Name Act, and that it was being done before. It is obviously a new direction and policy.
Hon. Mrs. Joe: The old Act permitted the courts to make that change.
Mrs. Firth: I have seen something here that I do not know if it is acceptable. I have seen an official from the audience come down here and whisper something in the Minister of Justices ear and in the Ministers ear. It has not shown on the record that this has happened. I would like the Chairman to rule on that.
I want the Minister to answer. She told us in this Legislature that this was happening all the time now and that it was in the old Act. I want some clarification about that. I want to know where it is in the old Act and how many times it has happened before.
Chairman: The ruling as to the witness, according to Standing Orders 58(2): when the House is sitting in Committee of the Whole to consider Bills, the Minister, in charge of the Bill being considered, may have a limited number of departmental officials seated near him or her to supply information as required.
We would invite the witness to accompany the Minister.
Hon. Mrs. Joe: The information that I have received is that the old Act, the old Change of Name Act, allowed that to be done through the courts, as the change of names were done.
Mrs. Firth: It was really at the opinion of the judge, it was not the Act that allowed it. Is that not technically correct?
Hon. Mrs. Joe: The power to do it was created by the Act, and the judge made the final decision, and it has been done in cases. There have been name changes and they have continued to get support as foster children.
Mrs. Firth: What does it have to do with the The Childrens Act?
Hon. Mrs. Joe: Under the existing The Childrens Act there is something similar to adoptions, and that is what I was talking about. It is similar to adoptions. If a couple adopts a child, or if one person adopts a child, there is provision in the Act for that child to receive a subsidy, even though they have been legally adopted, and that is what I was referring to.
Mrs. Firth: We come to the conclusion, then, that this is a new policy direction of this government that it gave when the legislation was being drafted. Before it was at the discretion of the court, or the judge, to make this decision. It was not a policy of the government.
Hon. Mrs. Joe: It was the discretion of the court when they did all applications for changes. It was at his discretion, and that is now being done by the registrar, for any change of name.
Chairman: Anything further on clause six?
Clause 6 agreed to
Hon. Mrs. Joe: I move that Bill No. 9, Change of Name Act, be reported, without amendment.
Chairman: Motion agreed to.
Bill No. 14, Miscellaneous Statute Law Amendment Act, 1987
Hon. Mr. Kimmerly: Some questions were identified at the second reading. I would suggest we deal with particular clauses. I should point out to Members that I believe there is a mistake that I just discovered on clause 4 under the Insurance Act, there is a reference to paragraph 1(f). I believe that should be 21(f), but I would ask to stand that when we get to it.
Mrs. Firth: On a Point of Order, there are a couple of errors that I believe will have to be dealt with as amendments. I would recommend that Mr. Chairman give a ruling on whether they be dealt with at the time we reach the specific clause as an amendment, as opposed to the Minister standing now to correct the record.
Chairman: We will deal with them as amendments when the particular clause to be amended arises.
Hon. Mr. Kimmerly: In addition, in clause 6 - Legislative Assembly Retirement Allowances Act - I am advised that, although it looks like there is a mistake in the clause numbers, there is not. However, it is extremely misleading as it is written as the published Revised Statutes do not contain the numbers suggested by the Amendment Act. I will be proposing an amendment to clause 6.
Mrs. Firth: There are some outstanding questions on clause 1 that we asked. I assumed the Minister was going to be prepared to answer them when he came back to debate in Committee of the Whole. Specifically, that was what the policy of this government is when it comes to miscellaneous statute law amendment acts. I would like to know what the policy is.
Hon. Mr. Kimmerly: The policy is to put in minor amendments which better express the policy of the original Act and to correct things which are obviously mistakes.
Mrs. Firth: By minor amendments, does that mean that there could be policy changes?
Hon. Mr. Kimmerly: It would be quibbling to what is called a minor amendment or a policy change. As an example under the Fine Option Program, there is a program for working off the amount of the fine. The present law does not include court costs. One of the sections in this Bill is to include court costs with the fine. The Member opposite has expressed an opinion that that is a policy change. I express the opinion that that is a minor amendment to follow the same policy. The opinions do not matter. Perhaps when we go through the specific clauses we can determine where the precision changes and deal with the changes.
Mrs. Firth: The addition of the expression amusement rides is not a technical defect, and it does not better express the old. This is a new addition, a new policy to include amusement rides in this 2(1) of the Elevator and Fixed Conveyances Act.
Hon. Mr. Kimmerly: That is not a question. I have no responding comment.
Mrs. Firth: As it presently sits, there is a list of things that are included. Amusement rides has been added. It is a new inclusion, therefore, that can be interpreted as a new policy. This government is now going to be including amusement rides as well as the other ski tows and list of things presently in the Act. When was this new policy decision made to include amusement rides?
Hon. Mr. Kimmerly: Just a little while ago, and it is proposed in this Act. The question is: are Members for it or against it?
Mr. Nordling: With respect, it is not whether we are for it or against it. There are significant new policy changes being made under the guise of the Miscellaneous Statute Law Amendment Act. These are policy changes and inserting them in this way hides them. They are not easily and readily apparent. If it is because it is a short simple change, that is what we are doing with the Elections Act. We are simply changing the number 19 for the number 18, and I do not know why, then, that was not included in the Miscellaneous Statute Law Amendment Act. Here - and paragraph 1, clause 1, is not the only place - there are definite policies and significant changes to several acts being made under the guise of better expressing policy that was already in a previous act or correcting obvious errors. That is B.S., and the Minister is not following his own policy on what the Act is for. I think it is incumbent on him to get up and explain the new policy - not ask whether we are for it or against it. We want to know why these things are being done, who decided, and when. What evils are we correcting by changing ski tows to amusement rides?
Hon. Mr. Kimmerly: Swearing in the House is unparliamentary. I will read the section to the Member - this is the Elevator and Fixed Conveyances Act: This act applies to passenger elevators, freight elevators, dumb waiters, escalators, inclined passenger lifts, belt lifts, aerial tramways, airlifts, ski tows, rope tows, mechanized parking garages, speed-walks and speedramps. We are proposing that we add amusement rides as well, just after the expression ski tows which exists. There is a change, obviously. Amusement rides are now not covered. I would say to the Members opposite that amusement rides are akin to aerial tramways, chairlifts, ski tows, rope tows, et cetera, and we are wishing to include amusement rides under the Elevator and Fixed Conveyances Act because amusement rides are not now covered, and this would provide a mechanism to ensure public safety.
That is the policy. It is certainly something that is a change from the past. That is why it is put into the Act. We made a decision that this section was not significant enough to warrant its own amendment act - an amendment act of one section - and it was within the proper scope of a miscellaneous statute law amendment act.
The policy is to greater ensure public safety by including amusement rides along with the list of things that I gave.
Mrs. Firth: That is not the point. Why did the government see fit to add amusement rides? What is the reasoning behind it? The Minister has said it was because of safety. Therefore, how many unsafe incidents have occurred causing the Minister to make this decision? He has said that this is a change from the previous Act. There are people who come here to provide amusement rides to Yukoners who have previously not been included under this legislation and are now going to be. There is a new law that they will have to be abiding by. Do they know about it?
I would like to know who was involved in the decision-making. Are his Cabinet colleagues aware that this is a policy change? It is an addition. The Minister could have added sleigh rides or made some other additions to it as well. What was the reasoning behind amusement rides? I would like some substantiation, please.
Hon. Mr. Kimmerly: There was one new question and a repeat of a number of old questions. The new question is how did we decide. I sponsored a submission to Cabinet to introduce a Miscellaneous Statute Law Amendment Act. The various provisions were identified, and the Cabinet agreed. That was the process.
The repeat of the question about policy is that the government perceives that, in the interest of the safety of the general public, the amusement rides should be inspected, as is called for under the Elevator and Fixed Conveyances Act, as they are everywhere else.
Mrs. Firth: If it went to Cabinet for a decision, Cabinet made a policy decision with respect to having this included. That is what the answer was that we wanted. The Minister has admitted that it is a different policy direction.
On Clause 2
Mrs. Firth: Again, this is doing something different than they did before. It is a policy decision to now include the court costs in the term fine. That is a different direction. I gather Cabinet must have made the policy decision to include this as well. It does not better express the old idea, and it is not a technical amendment - it is a policy change.
Hon. Mr. Kimmerly: Yes, it is a change. Absolutely everything is a change, otherwise we would not do it. The policy here is to include court costs along with the fines. That is a policy that is consequential on the original policy about fine option.
Mr. Lang: Is this not a substantial change with respect to what an individual is now going to be charged? What will the implications be for a person who has to pay a fine such as this? This is a major deviation from previous policy.
Hon. Mr. Kimmerly: This is not a major deviation at all. It has absolutely no impact on what judges award for fines and for costs. The present Fine Option Act allows for persons who receive fines to pay them off by working at minimum wage on community projects. The present Act does not include the possibility of paying off court costs. Court costs are characteristically given by justices of the peace and are in the neighbourhood of $5.00. That would include an additional hour or part of an hour of work. If a person gets a fine of $50.00 plus $5.00 costs, they can work off the entire $55.00 as opposed to, in the past, only $50.00 and paying the $5.00 costs.
Mr. Lang: I do not understand this since I have not been blessed with the background of the Minister of Justice who used to serve at the bench at one time and has a legal background. Is the Minister saying that the most we are talking about is $10, or could there conceivably be $1,000 or $2,000 in court costs? You have used the minimum amount of money that could be required.
Hon. Mr. Kimmerly: There is a schedule of costs for some things. There is a power granted to the courts to award costs as well as the fine. I have never seen any award of costs that is over. The highest I have ever seen in my life is $5.00. Technically, there is the legal jurisdiction in the judge to award higher amounts, but I have never seen that.
Mr. Lang: I always assumed that court costs were a significant amount of money and, with this decision making it mandatory, am I to believe the policy direction to the judiciary is that court costs would amount to $5.00? Could it be as high as $1,000?
Hon. Mr. Kimmerly: The Member for Porter Creek East talked about making it mandatory. I would emphasize that, under the original Act, there is nothing that is mandatory - this is entirely an option. There may be a confusion between court costs in a civil case and court costs in a criminal case. If a court awards court costs in a civil case, that is money that is paid from the loser to the winner, and the Fine Option Act does not apply to that at all. This is simply money owed to the Crown.
Mr. Lang: I appreciate the clarification. When the Crown makes the decision that court costs are going to be paid, you are saying to us that we are talking $5.00? We would never see a situation where someone from Faro would have to pay $1,000 under a Fine Option Program? That is the assurance I am looking for.
Hon. Mr. Kimmerly: Yes, I can assure him.
Clause 2 agreed to
On Clause 3
Mrs. Firth: I would like to express that this is one of the few legitimate clauses in this Bill and represents what a miscellaneous statute law amendment Act is supposed to do.
Clause 3 agreed to
On Clause 4
Hon. Mr. Kimmerly: I believe there is a misprint in clause 4(1). If the Member opposite has an amendment, I would be pleased to entertain it, Otherwise, I would ask that it stand until I am able to deliver the proper clarification.
Mrs. Firth: This amendment was done in April 16, 1987, from the Statutes of Yukon, Chapter 12, 1987, An Act to Amend the Insurance Act, and was assented to. We find the same clause in here under an (f.1). It is clause 4 and says: (21) is amended by adding the following clause: (f.1) underwriters or syndicates of underwriters operating on a plan known as the Canadian Insurance Exchange. Why is this here? Obviously, he does not know. He has brought a Bill in here whose contents he is not familiar with. I can see the Minister of Health doing it but, when the Minister of Justice is doing it, too, it really makes me wonder what is going on.
This is the man who is supposed to be responsible for legislative changes. He comes here with an incorrect clause and, now, he does not even know why it is here and wants to come back and explain it to us. I would like some explanation and clarification. As far as I was concerned, it was already done.
Hon. Mr. Kimmerly: On the basis of the statements made by Mrs. Firth, I suggest we vote against clause 4, and it will be deleted from the Bill.
Mrs. Firth: I find that a bit irresponsible. The Minister sponsors a Bill, brings it in here, and now wants us all to agree that we just take this clause out. I want to know why it is here and why he does not know anything about what it means or what it is doing.
We are making laws on behalf of the people of the Yukon.
I move clause 4 be stood over and the Minister come back with an explanation.
Clause 4 stood over
On Clause 5
Clause 5 agreed to
On Clause 6
Hon. Mr. Kimmerly: I would move an amendment that Bill No. 14, entitled Miscellaneous Statute Law Amendment Act, 1987, be amended in clause 6(1) at page 2 by deleting the expression, In subsection 3(3) of the Legislative Assembly Retirement Allowances Act, and substituting for it the expression:
In subsection 4(3) of the Legislative Assembly Retirement Allowances Act, the reference here being to that Act as it stood before the coming into force of the Revised Statutes of the Yukon, 1986,.
Chairman: Any debate on the amendment?
Mrs. Firth: I agree with the amendment; I had the same amendment. Again, I have to ask why the Minister has to have us point out, in second reading debate, that there were going to be some areas that he had to look at - why he did not know about this when he brought it in? I mean, he tabled this in the Legislature; surely he must have known that this error was there already.
Hon. Mr. Kimmerly: I will answer that in two ways: first of all, I am assured by the legal draftspeople that what exists, in fact, is not my error. Now, I have difficulty understanding all of that myself, but the problem lies in the fact that when the revised statutes were proclaimed and published, the changes which were made did not appear in the published version. Consequently, it was very, very difficult for members of the public to understand the amendment, unless this amendment is made. And more generally, I would answer that in going through this Bill and making the policy changes, we did so prior to the coming into force and the publication of the Revised Statutes. That necessitated the changing of a number of the section numbers in the Bill, and that proofreading, on occasion, was not perfectly done.
Mrs. Firth: It is either the policy of this government to make things easier for the public, or not to. I would like some reassurance from the Minister that he is going to give the solid direction that it is to be made easier, Because, Mr. Chairman, when I reviewed this, it took considerable time to track down where the error had been made and where some little oversight - or whatever the Minister called it - it is not an oversight and if the government is saying and insisting that it is their policy to have legislation more accessible, easier to understand, easier to have access to, then they had better be doing that. We should not have to check up on every little thing.
Chairman: Is there any further debate on the amendment?
Amendment agreed to
Clause 6 agreed to as amended
On Clause 7
Mrs. Firth: I interpret these two expressions to be different. I would like the Minister to tell me how they can both be the same.
Hon. Mr. Kimmerly: They are not the same. The unexpressed question is why are they in this Bill if it is policy change. It is a policy change of a minor nature. This is in keeping with our modern attitudes about the discretion of public officials.
Mrs. Firth: Can we go back to the explanatory note of this Bill and then change the wording that says rather than to make any change of policy to read rather than to make minor changes of policy? The Minister has just admitted that this is minor change of policy. I submit that the explanatory note is erroneous and misleading.
Mr. Chairman: Is there any discussion on that?
Hon. Mr. Kimmerly: The explanatory note is not part of the Bill. I submit it is not something that the Legislature or the Committee can change. However, I accept that point, and the wording suggested is a better wording and reflects more accurately what is in the Bill. We will use that in the future.
Mrs. Firth: Not only is it a more accurate expression, it is a more honest expression.
The Minister, during second reading, expounded in detail on how these miscellaneous statute law amendments did not change policies. Now he is saying that we have some minor changes. It is getting to the point where I do not know if I should believe the Minister of Justice when he says something. Even though it is not part of the Bill, the principle is there. When the government introduces a Bill, a new law for the people of the Yukon to live by, in which the explanatory notes says one thing but means another, I find that less than forthcoming.
Mr. McLachlan: My understanding of the hierarchy of the legal expression is that there are three terms: believes on reasonable grounds, suspects and is guilty of. I want to ask the Minister why this amendment is moving it up one more. Is it not true that the expression suspects carries more reflection of guilt or proven culpability than believes on reasonable grounds? What is the reason for this?
Hon. Mr. Kimmerly: Section 232 of the Motor Vehicles Act talks about the discretionary power of a policeman or a police officer to remove the drivers license; and it is now if the police officer suspects that the driver has consumed alcohol in such a quantity as to affect the drivers physical or mental ability. The peace officer here is given a very, very wide discretion in that a suspicion is one thing; a reasonable belief is a much more onerous test. We are taking the discretion away from the peace officer in this section. It is necessary, if this section is passed, that the peace officer believes on reasonable grounds - that he has some reasonable grounds for belief. That is the reason for this amendment.
Clause 7 agreed to
On Clause 8
Mrs. Firth: I would like the Minister to explain the significance of this change.
Hon. Mr. Kimmerly: I believe it is self-explanatory, in fact, in that municipalities are given municipal infrastructure grants and supplements, and this more perfectly expresses the existing, and I believe unchanged, policy of including the supplements to the grants as well as the original grants.
Clause 8 agreed to
Chairman: Is it the wish of the Committee to take a fifteen minute recess at this time?
Some Members: No.
On Clause 9
Clause 9 agreed to
On Clause 10
Clause 10 agreed to
On Clause 11
Mrs. Firth: On Clause 11(1) again I interpret this as a policy change because you are adding something in this amendment. Is that correct?
Hon. Mr. Kimmerly: I understand the Members interpretation.
Mrs. Firth: We are talking about the effect of something and the application of it, and I want the Minister to confirm whether that is a policy change - that they have added some new policy direction.
Hon. Mr. Kimmerly: It is quibbling, I suppose. There is some policy change here, yes.
Mrs. Firth: I would be very grateful if the Minister would stop referring to it as quibbling because this is his Bill which he stated categorically did not change policy. We have proven him to be wrong today, that there is policy change, and I simply want to sort out each clause that has a policy change. We have a responsibility as the Opposition to do that.
Clause 11 agreed to
On Clause 12
Mrs. Firth: Perhaps the Minister could tell us what this says, what the intention is.
Hon. Mr. Kimmerly: The subject matter is the payment of costs in the Supreme Court if the matter is within the jurisdiction of the Small Claims Court. If the matter is within the jurisdiction of the Small Claims Court then the Supreme Court Tariff of Costs should not apply.
Mrs. Firth: That is a policy change too, then.
Clause 12 agreed to
On Clause 13
Clause 13 agreed to
On Clause 14
Mrs. Firth: This is a major change. We have moved from minor changes to major changes, because what this in effect does is change the term of the chairperson from five years to three years. Is that correct?
Was it the intention of this government to change that policy?
Hon. Mr. Kimmerly: It is the intention of this government to correct an error in previous legislation. It was always the intention to have the board members, including the chairperson, appointed for three years. This brings that about.
Mrs. Firth: Was the board consulted about this? The Minister is incorrect in his statement. The word five - the term of the chairperson has been five years for some time. How can the Minister now say that the intention was that it always be three? Why was it five when the intention was that it be three years? This is a major change now that the term of the chairperson will be reduced to three years. I would like to know if the members of the board were consulted or if they are aware of this?
Hon. Mr. Kimmerly: The chairman of the board was consulted. It was he who brought it up. We discussed a new consistency. The other members of the board are appointed for three years, and in his letter of appointment, it stated three years. The Act said five. It is obviously an inconsistency. The Member opposite can call it sloppy, and I agree it was. We are correcting the situation to make the chairperson and the other members, all appointed for the same period of time, three years.
Mrs. Firth: Why would it be only the chairperson who was consulted? Were the other members consulted? I am not clear what the Minister said. By saying that it was only the chairperson who was consulted, does he mean that the other members were excluded? Are they not aware of this change? When will they become aware of it? Just as it is announced in the news?
Hon. Mr. Kimmerly: The other members are not affected, and the consultation occurred between the chairperson and myself. I indicated that we would change the situation, or propose a change to the Legislature. The attitude of the chairperson was that it was of little consequence to him.
Mrs. Firth: This should have come as an amendment to the Workers Compensation Act. It should not have been put into the Miscellaneous Statutes Law Amendments Act.
Chairman: Is there anything further on clause 14?
Mrs. Firth: Just before the Minister gets up and does his little thing, I would like to express that I would have expected better of this Minister. He has disappointed Members on this side of the House.
Clause 14 agreed to
Hon. Mr. Kimmerly: Mr. Chairman, I move you report the progress on Bill 14.
Chairman: Before we proceed with the next Bill, Bill No. 78, does the Committee wish to take a recess?
Chairman: Committee of the Whole will now come to order.
Bill No. 78 - An Act to Amend the Income Tax Act
Hon. Mr. Penikett: As I stated in my remarks at the Second Reading, the purpose of this Bill is to amend the Yukon Income Tax Act to conform to changes that have already been made in the federal Act and this is required by the Income Tax Collection Agreement between the Yukon and federal government. This type of agreement exists between all the provinces and territories and the federal government.
If it would expedite matters, I would be more than happy to explain what is intended in each of the two groups of clauses, because there is an effort here to combine amendments to three separate sets of changes to the Income Tax Act to try to bring them into conformity. If it is the will of the critic or Members opposite, I would be prepared to go through what is intended in all the changes at once in describing the groups of sections. If it is the wish to proceed by what I would think would be the more laborious route, clause by clause, then we could do that too.
Mr. Phelps: I am curious as to which government prepared the amendment. Was it done by our Department of Justice or from suggestions made by the federal department?
Hon. Mr. Penikett: It was done by our Department of Justice in consultation with our Department of Finance to bring our Act into conformity with Acts and amendments which have already gone through Parliament to the federal Act.
Mr. Phelps: I would be pleased if the Minister would go through as he suggested.
Hon. Mr. Penikett: Basically the purpose of these amendments by section provide for the following: Clauses 2(1), 7(1), 7(5), 8(3) and 8(7) provide for the computation of compound interest on overpayments as well as outstanding amounts relating to tax. The penalty portion of an assessment is also, Members will note, subject to interest.
In Clause 3(1), the federal amendment in this area corrects a problem of circularity between this paragraph in the federal Act and other provisions of that Act. It clarifies and modifies the definition of tax otherwise payable for the purpose of the Overseas Employment Tax Credit. The changes in definition will now exclude from that calculation tax adjustments provided in Section 120 of the federal Act, which is a surtax, so 47 percent is added to the federal tax payable on income not earned in a province, just by way of explanation.
Group clauses 3(3), 4(1), 5(2), 5(3), 5(4), 6(1), 7(3), 8(1), 8(5), 9(1), 10(1), 11(1) and 12(1), which firstly outline the duties of the Minister of National Revenues, and relate to the disposition of appeals, secondly make provision for the calculation of an installment base on which a corporation would pay its estimated annual income tax payable by installments, thirdly make provision for the refund of an overpayment of tax by a taxpayer where the taxpayer has requested a refund within three years from the year to which the tax is applicable.
Group clauses 3(3), 4(1), 5(2), 5(3), 5(4), 6(1), 7(3), 8(1), 8(5), 9(1), 10(1), 11(1) and 12(1), which firstly outline the duties of the Minister of National Revenues, and relate to the disposition of appeals, secondly make provision for the calculation of an installment base on which a corporation would pay its estimated annual income tax payable by installments, thirdly make provision for the refund of an overpayment of tax by a taxpayer where the taxpayer has requested a refund within three years from the year to which the tax is applicable, and fourthly to establish a time limit for the reassessment of income tax returns; fifthly, to make provision for the Minister of National Revenue to accept security for the payment of any amount that is, or may become due, under the Act.
Having explained, in broad terms, those provisions, I am happy to entertain any questions that you may have on these matters and I have brought the most expert person in the Department of Finance, a former employee of the Department of National Revenue-as you can tell by his size-to assist me in this task. I must warn the House that a number of provisions of the federal Income Tax Act, indeed the whole Act, is an entirely complex beast and many questions I would have to take under advisement - I am more than happy to do that. But neither of us here present may be able to answer all the questions that will be suggested.
Mr. Lang: I would like a further explanation, with respect to the computation of interest compounded daily. Are we talking about overdue payments, and if so, what direct effect is it going to have as opposed to what the present system is?
Hon. Mr. Penikett: That is for overdue payments. Right now it is, I think, nine percent, adjusted quarterly. I guess with computer technology it is now possible to calculate the amount owing daily and that is what is contemplated by this federal legislation.
Mr. Lang: Perhaps you could give me some pragmatism. For example, if I have $1,000 I owe the government, what effect is it going to have, as opposed to the old policy?
Hon. Mr. Penikett: The only difference is that it has now become possible to calculate - to the most precise fraction - the amount that may be owing if one is 34 days late, or 37 days late, or, I suppose, 153 days late, on the amount owing itself. Whereas before, I guess it would be done to the nearest quarter or something.
Mr. Lang: Knowing the government, they are looking for more money, not less money. I have never seen anybody in the government look for less money. And I just want to have an idea what this is going to do to a taxpayer here who perhaps, for one reason or another-it may not even be their fault-has an outstanding account. I used an example of $1,000. If you have that $1,000 outstanding for the year, under the old system, what would that amount, versus this daily compounded interest, be? Because there must be a significant difference, I would think.
Hon. Mr. Penikett: I am advised the effective rate is the same. What happens, when you calculate it daily, is that there is a smaller interest rate for the day and it is convertible to an annual rate. I am told, although obviously I have not done this calculation myself, that for example, an eight and some fraction daily rate may come close to eight point nine or some figure calculated annually. So by calculating it daily they have not increased the burden on the delinquent taxpayer, they are just simply more precisely collecting it based on the fractions at the time that it is owing.
Mr. Phelps: It is an important point that the Member for Porter Creek East raises, because it seems that an amount compounded daily would result in the taxpayer paying more, being penalized more for the overdue payment.
Hon. Mr. Penikett: Pardon me. By calculating it daily, that does increase the burden on the taxpayer marginally. I misspoke myself earlier. By calculating it daily, that does increase the burden on the taxpayer.
Mr. Phelps: Are there any projections prepared to illustrate the difference at todays rates on a bigger sum, such as a thousand dollars?
Hon. Mr. Penikett: I have none handy, but I would be quite happy to provide the House with a calculation of that kind.
Mr. Phelps: Perhaps the Minister could simply table that for us? I do not think it requires any clause, but I think it is important that the taxpayers understand the consequences.
Hon. Mr. Penikett: I am quite prepared to do that.
Mr. McLachlan: A number of particular clauses in this Bill refer to retroactivity to 1984, and in one case to 1983. By passing this, will the Government of Yukon be going backwards in peoples records for collection of anything?
Hon. Mr. Penikett: I am advised that the Income Tax Act is already administered that way and if there are charges owing back to that period the Act now provides for collection.
Mrs. Firth: Can the Minister tell us if there are any increased person years associated with this Act, or increased O&M costs?
Hon. Mr. Penikett: No.
Mr. Lang: Perhaps the Minister could explain better to me what the overseas tax credit is. He referred to it specifically in his notes and perhaps he could elaborate and let us know exactly what it is.
Hon. Mr. Penikett: There was, for people such as those in the Armed Forces, an Overseas Employment Tax Credit - the same as for people who are resident in the country. A problem arose because the tax reductions and the additional tax provided in Section 120 are based on an individuals tax - otherwise payable net - of the Overseas Employment Tax Credit. The notes from the federal government say, to avoid this problem, the definition of tax otherwise payable for the purposes of Overseas Employment Tax Credit is being amended to exclude the tax adjustments provided in Section 120.
This amendment applies to 1984 and subsequent tax years.
Mr. Lang: What problems are there?
Hon. Mr. Penikett: The problem was the definition of taxes otherwise payable. This amendment proposes to correct that problem of definition.
Mr. Lang: I get the impression that the Income Tax Department can go back seven years, or ten years, or whatever the case may be, by Statute of Limitations. How many years can the government go back?
Hon. Mr. Penikett: The seven years is the one that I am accustomed to. I believe that is the advice one usually gets regarding ones personal records. I am also advised, that in the cases of fraud, there is no limit as to how far they can go back. There is no Statute of Limitations.
Mr. Lang: I am not talking about fraud. If there was an honest mistake eight years ago that was caught now, would the tax department - other than for fraud or some criminal intent - be able to use that?
Hon. Mr. Penikett: The practical limit is four years from the date of filing for correcting problems such as it applied to the Member opposite.
Mr. Lang: The Minister indicated that there would be three years for refunds. Can one only go back three years if a mistake is found?
Hon. Mr. Penikett: It is three years from the date of filing, from the time the refund is requested.
Mr. Lang: Why is it not four years?
Hon. Mr. Penikett: I am not very happy with the explanation for this but the explanation is: that is the federal policy. I am not at all clear on the reasoning for that. I will be happy to make an inquiry as to why that is the policy, but that is the policy of the income tax department.
Mr. Lang: Has no one asked why it is four years for the government and three years for an individual?
Hon. Mr. Penikett: I did not ask that question in connection with this bill.
Mr. Lang: Could we stand that particular section aside, make an inquiry and see whether or not they are prepared to concede to the point, that what is good for the goose is good for the gander. Anyone who has any perception of fairness would agree that if four years applies to the government, it should apply to the individual.
Hon. Mr. Penikett: I am quite prepared to write to the federal Minister of Finance and ask him why this policy has existed. The explanation one gets from the department is that it has always been this way. That is not satisfactory to legislators. I will write to the federal Minister but there is little prospect of the federal Minister agreeing to a change in the federal Act, which we are required to comply with. I will, however, make representation to the federal Minister on the question put by the Member.
Mr. Lang: Do I take it that this is strictly lip service we are giving this Bill, and we really cannot make any changes because we are bound by the federal Act? Is that the message we are getting?
Hon. Mr. Penikett: That is exactly the message I used to get when I was on the other side in the case of times when we were required to bring our legislation in conformity with federal legislation. Yes, the fact is that that is what we are required to do and, therefore, I would guess the consequential amendments would not be possible with this kind of legislation.
Chairman: Any further general debate?
Mr. Phillips: I have a question about the Travel Bonus Tax. Is the government taking off the taxes on the travel bonus currently?
Hon. Mr. Penikett: It is not dealt with in this Bill. I understand that the Member did make an inquiry of the Department of Finance on that score, and I am in the position of preparing a response with respect to his inquiry. It is not covered under this particular piece of legislation.
Mr. Phillips: If the Minister is ready to make a response, could he make it now and let me know so I can let my constituent know what the situation is?
Hon. Mr. Penikett: I do not have the material with me, and that is not a reasonable request. I am preparing a response and, as soon as I can get it to the Member, I will do so.
Mr. Lang: I have a general question on the Income Tax Act. When we accepted the responsibility for the income tax collection, we had a commitment that we could not go under 45 percent with respect to what our obligations would be for the purposes of collecting. We could always increase or increase and come back down again, but we could not go below a certain number. Is that statement still correct? I would like to know what our situation is now.
Hon. Mr. Penikett: I do not know off hand what undertakings were made by the government of the day in 1980 when we first introduced a territorial income tax act. I do know that we are now in a situation where we can establish whatever rate for territorial income tax that this Legislature chooses to establish. We could raise it; we could lower it.
Mr. Lang: We could lower it as much as we want as far as the territorial Legislature is concerned? I recall there were undertakings taken in 1980 or 1981.
Hon. Mr. Penikett: It is theoretically possible. I do not think it is practically possible to go down to zero or to eliminate it, but it is within the power of this Legislature to set a rate. We could raise it, we could lower it or keep it the same. Members all know there would no doubt be some consequences to theoretically eliminating a territorial income tax, which I think would be quite difficult. I do not think we want to speculate about those.
Mr. McLachlan: On general debate, the Bill makes reference to the Commissioner of the Yukon accepting security for payment of back taxes where owing. Is it common for the Commissioner to accept land from someone who cannot pay his taxes?
Hon. Mr. Penikett: The answer is yes, and I should explain that it is the Commissioner in name only - in fact, it is the Minister of National Revenue for the purposes here. Yes, it is possible to have a convertible asset in payment or as security for taxes owing.
Mr. McLachlan: What that means, then, theoretically, is that if there is a poor, broke farmer on the Mayo Road who cannot pay his taxes, he could put up his agricultural land, which the Minister of National Revenue will accept as payment for taxes owing for that year or a previous year. Is that my interpretation?
Hon. Mr. Penikett: Not as payment, only as collateral.
On Clause 2
Mr. Lang: The federal Income Tax Act was always in a state of flux. With reference to the piece of legislation we have before us, is there federal legislation in place or is it being proposed to Parliament?
Hon. Mr. Penikett: It is in place, and let me anticipate another question: it is quite conceivable that we would have to do this every year this Legislature sits, depending on what happens in federal budgets.
Mr. Lang: We are getting some information on this. In ballpark terms, do we have a lot of people who owe us money through income tax that has not been paid on time? Are we talking of a significant amount of money? If we are, in just what ballpark area are we talking?
Hon. Mr. Penikett: The real answer to that question is that we do not know. The federal government conveys or transmits to us all the money that is levied on our behalf, and they carry out the collection procedures against taxpayers. If you were to ask me today if there were 100 people in default or 1,000 people in default in the territory, we would not know. The federal income tax department is the one chasing those people and pursuing collections.
Mr. Lang: I am not asking for numbers of people - I am asking for amounts. With respect to this computed daily interest that before was computed monthly or semi-annually or quarterly, what amount of money are we speaking of and does it directly accrue to us through the federal government?
Hon. Mr. Penikett: The federal government carries the receivable. They transmit to us what is eligible. Presumably, if they later collect interest on the charge, that accrues to them rather than to us.
Mr. Phelps: There is a fair amount of money in limbo because of the moratorium that was brought about by Digby Hunt when he was land claim negotiator, whereby there was a moratorium on income tax to be paid by certain beneficiaries of the Indian land claims. That was extended year by year. What is the situation right now? Does that moratorium still exist? Does that mean that there is potentially a huge amount of money owing, a portion of which would be revenues to the Yukon. If the moratorium is not continued, then the tax is payable. I believe it goes back to 1976.
Hon. Mr. Penikett: I will have to take the specific question about a moratorium as notice. The money has been coming to the territory. I believe the current interpretation is that it is income earned as taxable, except for money earned on reserves and some such situation as that. That is the current interpretation.
As a result of that moratorium, I do not know if there is a current calculation on the money owing, but I will also take that question as notice.
Mr. Phelps: I wanted to know the present status; is that moratorium being continued year by year?
Hon. Mr. Penikett: I will take the question as notice.
Mr. Lang: If we have money outstanding - our portion of the income tax that has not been paid - and we are passing territorial legislation to put it on to a daily compounded interest rate as opposed to the old system, why would we not get a portion of those dollars that accrue to the outstanding amount that accrues to the government?
Hon. Mr. Penikett: In the current year, or when we get the adjustment, we get the part that is eligible to us. If part of it is from a taxpayer who has not paid, there is a receivable against that taxpayer. The federal government then goes and collects that.
There is adjustment. Because of income tax going up, we get more or we get less in any year. That affects the grant under formula financing as well. The net effect is then balanced out.
Mr. Lang: We get our income tax dollars that are accruing to us, no matter whether the individual pays or not - is that correct? The federal government assumes the responsibility of collection and will then, therefore, earn their just returns if they collect the money?
Hon. Mr. Penikett: Yes, yes, yes.
Mr. McLachlan: I do not understand the Ministers statement, We do not really know, because the federal government does all the collection for us.
Is it not my understanding that we get a computer-run tape from Ottawa every two months, giving us the status of our receivables and collectibles and income tax owing?
Hon. Mr. Penikett: We get some such information, but it is usually two years after the fact.
Clause 2 agreed to
On Clause 3
Clause 3 agreed to
On Clause 4
Clause 4 agreed to
On Clause 5
Mr. Lang: I am not too sure if I am on the right section but I will try. It has to do with installments. Who makes the decision to pay by installments? Does the income tax department direct a corporation or an individual because of their past years earnings to pay by installments, as opposed to the end of the year, and if so, has it changed with this Bill?
Hon. Mr. Penikett: There are provisions in the Act that dictate who can or cannot, or who will and will not pay by installments. I understand from my adviser here that, from the point of view of the income tax department, it is based on the tax paid in the previous year. I take it, if it is such a volume or such an amount that the tax department deems it advisable to get it in monthly installments, or whatever, that they will ask for it to be remitted that way.
Mr. Lang: What is that amount?
Hon. Mr. Penikett: My adviser tells me that, from memory, if it is more than $1,000 taxes owing a year, they will be asked to pay in installments.
Mr. Lang: You misunderstood me. I am not asking for what is owing. I am asking about installments in the past year, whether or not, if there is a certain amount of money that is paid over the course of the past year, and the taxpayer, the corporation or the individual, pays their taxes, does the government, under this Bill, have the ability to say, You shall, from here on in, pay by installments?
Hon. Mr. Penikett: The answer to the question is yes.
Mr. Lang: Do I go back to $1,000 again? What amount are we talking as a base line? I had a question from a taxpayer and, quite frankly, I could not answer him.
Hon. Mr. Penikett: If the total tax payable for the year is over $1000, the federal government requires installment payments from the business.
Mr. McLachlan: I am looking for some explanation of 6(1) because of the reference to the term six months, after we talked about three and four years.
Hon. Mr. Penikett: It sounds like it is an impossibly technical explanation. I will take the question as notice and give a written answer. Unfortunately, so much of this Income Tax Law is gibberish to me. It has to do with filing a waiver to extend the three year period for the assessment. One has to file certain documents to request that, but I will get a written explanation for the Member.
Clause 5 agreed to
On Clause 6
Clause 6 agreed to
On Clause 7
Clause 7 agreed to
On Clause 8
Mr. McLachlan: Is the expression Commissioner used throughout the Bill, even though the Minister has admitted it is really Minister of National Revenue, simply to remain in compliance with Yukon legislation and that a similar amending legislation in the provinces would say Lieutenant Governor?
Hon. Mr. Penikett: In cases where we are referring to Commissioner we are talking about what are in effect amendments to our Act and we have to bring it into conformity with our basic Income Tax Act, which was passed by this House for the first time in 1980.
Mr. McLachlan: Even though the Commissioner never does take anyone to court under the Income Tax Act?
Hon. Mr. Penikett: That is correct.
Clause 8 agreed to
On Clause 9
Clause 9 agreed to
On Clause 10
Clause 10 agreed to
On Clause 11
Clause 11 agreed to
On Clause 12
Clause 12 agreed to
On Clause 1
Clause 1 agreed to
Title agreed to
Hon. Mr. Penikett: I move that you report Bill No. 78, An Act to Amend the Income Tax Act without amendment.
Motion agreed to
Bill No. 33 - Societies Act
Hon. Mr. Kimmerly: There were several questions raised on the second reading debate and I will just refer to those questions.
The first one was essentially: are we changing legislation just for the sake of changing it. I would answer that this is a completely new Act that replaces an Act that has been in existence for nearly 40 years. It is considerably different, as the Act was in substantial need of modification.
There was a question about what other jurisdictions have been examined. We examined all the Acts of all jurisdictions. We paid particular attention to Saskatchewan, Alberta and British Columbia, and we also looked at the Non-Profit Corporations Acts in Manitoba and Ontario. We did not follow any model of any province. We wrote our own Act here as we deemed that that was the most appropriate for the Yukon.
The Act was considered outdated; the forces asking for a new Act were predominantly the Association for Yukon Communities, which passed a motion asking for a new Act, and we are responding.
There was a question about consultation and about the effect on societies. We made a decision in the consultation process to send the Act to a representative group of all three of the smaller societies - the middle size and the larger ones. We only received responses from three societies and there were one or two concerns which we have, by and large, accommodated. We have recently sent a later draft to lawyers.
There was a question about the discretion of the registrar of societies and I would submit that this is best answered in the sections specifically relating to the registrar. There is certainly some discretion in the registrar here, but it is, I would argue, less in fact than the discretion in the old Act.
There was a peculiar provision in the old Act about an appeal to the Commissioner. That was enacted in the days when the Commissioner was the chief administrative officer of the territory. It is thought that events have overtaken that role for the Commissioner, and that is no longer appropriate.
There was a question about more detail about the different classes of societies. This is important almost exclusively for the reporting relationship with regard to financial statements. We have tried to do this as a service to societies to make the reporting least onerous and still be consistent with a government registration, which implies a government recognition. There was a question about the brevity of the Act in the sense of a complaint that it did not make the law better to make it brief. I submit that what we are doing here and what is important is to make the legislation as manageable as possible to lay people.
In the past, and for many other Acts, we seemed to write Acts as instructions to the civil servants. We are taking those instructions that do not need to be in the Act, in order to grant a power, out of the Act and thinking with the term of reference to the common citizen or the person who is a member of a society or who wants to start a society. We are trying to set out the rules in as understandable way as possible for those people. We perceived that it was better to make it briefer, and we have done that as much as possible.
The last question was about the concern for existing societies to be continued under the new Act. There are several provisions about that in the Bill. All of the old societies are continued, and there is a provision that we will get to that gives a time period, which is relevant to a small number of societies - basically the extra-territorial registrations - to bring their society into conformity with the new legislation. That is under a specific clause, and we will get to it.
Mrs. Firth: Would the Minister tell us about the need for modernization, to use his words, of this Act and the fact that it was outdated? What government policy formed the basis for this modernization of the Act?
Hon. Mr. Kimmerly: Just a general policy to make legislation as up to date as possible. I would mention that the Public Accounts Committee, I believe when the former Minister was a Member, made recommendations to the department that we monitor all of the legislation and bring it into conformity with modern times and correct inconsistencies. That is simply an ongoing practice of all governments. It seems to me that the complaint of the ordinary citizen is that we do not do enough of it.
Mrs. Firth: Perhaps the Minister could be more specific. I am not asking about rationale; I am asking about government policy. Could he be more specific about the areas where it was not conforming and where the new legislation now conforms - particularly any area where there is policy change as to compare to what was in the previous Act?
Hon. Mr. Kimmerly: I have not organized my thoughts in that way. One of the very important considerations has always been that the Act, as it is currently written, is difficult for the layperson to understand. It is those Acts used by laypeople, the Societies Act being among them, that we should look at first.
I mentioned the provision in the old Act giving the Commissioner the power of appeal over the registrar, and that is a provision that is outdated. It was probably perfectly appropriate 40 years ago but is not appropriate now.
Another difference is that the old Act requires societies to write bylaws about specific matters. I have been involved in many voluntary societies in the past and am sure all Members have. Societies have difficulty and spend a lot of time on these bylaws. We have perceived it as a service to give a standard set of bylaws which are entirely optional, but we can save the time of volunteers from reinventing the wheel every time bylaws need to be established.
It may be a service to members of societies to have a greater uniformity of bylaws around the territory, and that may come to pass, although it may not. We will see if societies use the service or not.
Mrs. Firth: The new Bill is going to create more paperwork for the societies. That is one change that will be a problem. The Minister is groaning and moaning. He does not agree. Some societies that I talk to feel that it will. That is a valid concern. There is also the concern about audits and the authorities of the registrar. Perhaps the Minister could address those issues and also tell us whether or not there is going to be an increase in person years required or any increase in any Operation and Maintenance money for implementation of the Act.
Hon. Mr. Kimmerly: There is no increase in person years or in money as a result of this Act. I make that as a promise to all Members. There will not be any increase. We have consciously addressed the problem of more paperwork for the citizen, and have tried to make a provision to make it the absolute minimum. A society will be able to be formed by filling out one form with one copy. If the Member opposite has any suggestion to make it simpler, please come forward, because that is what we are about.
Mrs. Firth: We will be discussing the issue of more paperwork and more work generally for the societies as we get on to the clause by clause debate.
I would like to ask more about the consultative process. The Minister said that they sent the Act to representative groups - small, medium and large. Can the Minister tell us how many copies were sent out? What was the representative sampling?
Hon. Mr. Kimmerly: There are 330 societies registered in the Yukon now. We sent the proposed Bill in earlier draft to five representatives selected at random from among three groups, for a total of 15 societies, and to three lawyers, one in each of the three major firms. We consulted with the accountancy profession. We received three replies from societies.
Mrs. Firth: My latest list gives me 366 societies as of November 9, 1987, but I will not quibble about 330 versus 360. Could the Minister tell us which societies he has had replies from?
Hon. Mr. Kimmerly: Yes, I will have that in a moment.
Chairman: The time now being 5:30, we will recess until 7:30 p.m.
Chairman: Committee of the Whole will now come to order.
We will continue with the Societies Act, general debate.
Hon. Mr. Kimmerly: I was answering a question about the three societies who responded to our inquiries. They were the Association of Yukon Communities, which is itself a society, the Yukon Historical and Museums Society, and the Yukon Foundation. In addition, the Yukon Family Services Association sent us an unsolicited letter, which was in response to a newspaper article.
Mrs. Firth: Of the other 15 that were consulted, or the other 12 that did not respond, what kind of a cross section of societies were consulted? Were they government-oriented ones, or did they consult just some regular societies, like the sports, or the Livestock Association, or the Bed and Breakfast society, or any of these others? Could the Minister give us some detail about who exactly was consulted? And what about some of the community clubs in the rural areas? Was there some rural consultation done as well?
Hon. Mr. Kimmerly: Perhaps I will read the list; that is the easiest way. The list was generated by taking representatives of the larger societies and the very small ones. The list was: the Association of Yukon Communities; the Beaver Creek Community Club; Carcross Preschool Association; the Council for Yukon Indians, which is a society; the Dawson City Museum and Historical Society; the Dawson Golden Age Social Club; the Faro Curling Club; Klondike Visitors Association; the Mayo Group Home Society; the Shakwak Valley Community Club; the Teslin Band Housing Society; the Watson Lake Ski Club; Yukon Foundation; the Yukon Historical and Museum Association and the Yukon Law Society, which is also a society.
Mrs. Firth: Could the Minister tell us the answer to a question related to another matter? I have noticed in the listings of the registered societies that there are a lot that have the name Yukon association - Yukon this, Yukon that. Can the Minister tell us what the government policy is regarding the use of the word Yukon for companies or societies?
Hon. Mr. Kimmerly: There is no change, of course, from the old Act to the new Act about names, or choosing names. The registrar has followed a practice of trying to discourage the word Yukon as the first word because it is extremely difficult to make alphabetical lists, of course.
Mrs. Firth: I am not looking for a technical answer from the Minister. I am looking for a policy position. What is the policy of this government with respect to the use of the word Yukon for companies and societies? Are there any restrictions on the use? Do they let everybody use it?
Hon. Mr. Kimmerly: To let everyone use the word Yukon if they wish.
Mrs. Firth: Is that for companies and societies?
Hon. Mr. Kimmerly: The short answer is yes, although there is an administrative effort to discourage using the word Yukon as the first word.
Mrs. Firth: In that effort to discourage, does that mean that they are not allowed to, that companies and societies are being told no? I do not understand why the Minister does not know what his own policy is.
Hon. Mr. Kimmerly: Some societies have been told in the past to not use the word Yukon as the first word of their name. However, if a society insisted, the legislation certainly permits it.
Mrs. Firth: I would like to register an objection. The Government Leader thinks it is funny, and perhaps he would like to explain the policy. I am asking a valid question about government policy and the Government Leader sits there and makes faces and laughs like my question is out of line. That is not true. I am trying to find out what the policy of this government is. The Minister of Justice is saying it is sort of there but it is not there, that the bureaucracy discourages the use of it, but if people raise a big enough fuss, they can use the word Yukon. I am just trying to get some clear policy definition.
Chairman: Any further general debate?
Mr. McLachlan: Will the registrar have the power to block the formation of a society if he deems there is an objectionable clause or clauses in the proposed societys constitution?
Hon. Mr. Kimmerly: Phrased in that very general way, the answer is yes, under the old Act and the new one.
Mr. McLachlan: That means that the registrar does possess the all-encompassing power to determine what is valid in the constitution - the formation of it, the adoption of it, the clauses, the rights and the wrongs.
Hon. Mr. Kimmerly: Phrased with that general phraseology, no. The problem is in the choice of words. The policy in the new Act is that any group will be able to form a society. This is in clauses 4 and 5: the objects must be lawful and that there must be a lawful purpose, and we will not allow a society with the objects of carrying on a trade or business, because that would be a corporation for profit.
The policy of the new Act gives the registrar less discretion, in that it is basically wide open. The government will not look at the stated objects of a society and either approve or disapprove. It will make a determination of whether the objects are lawful and whether they are carrying on a trade or business. If the answer to that question is yes for lawful, and no for the business, then the society will be registered.
Mr. McLachlan: Upon passage of this Bill is it the intention of this government to give presently registered societies some time to change all of their constitutions and articles under which they have been operating for years to conform with the new Bill?
Hon. Mr. Kimmerly: Yes, that is in clause 3, and specifically 3(3) at the bottom of page one.
Mr. Lang: Who is going to decide whether or not the bylaws are compatible with the present legislation as opposed to the old legislation?
Hon. Mr. Kimmerly: The members of the society, basically. The only ones that will need to change are the present extra-territorial registrations. There may be one or two bylaws somewhere that are contrary to this Act. It is impossible to say; it is unlikely. The societies will submit new returns and will determine themselves whether they wish to make any changes.
Mr. Lang: The answer to my colleague from Faros question, then, was: as long as your bylaws were compatible with this new legislation one would not have to reregister. If that is correct, what is the Minister referring to with respect to reregistering, or some terminology where the societies would have to come before the government again to ensure compliance.
Hon. Mr. Kimmerly: No. The societies that presently exist will all be continued without any application or any new piece of paper or red tape.
Chairman: Any further general debate?
On Clause 1
Mrs. Firth: I want to ask a further question about the consultative process. Did the Ministers department have any concerns that were expressed to them, and did they respond to the concerns? Could he tell us how many?
Hon. Mr. Kimmerly: Yes, the important one was about the requirement for commercial audits, which we accommodated completely. There were many questions that we answered. We consulted verbally with all of the people who responded and I believe satisfied every concern.
Mr. Phillips: In clause 1 in the first category, it says ... at a general meeting of which not less than 21 days notice of the resolution has been given.... Is the 21 days notice something new that was put into this Act that was not in the old one?
Hon. Mr. Kimmerly: No. I will read the definition in the old Act. It means ... a resolution passed by a majority of such members entitled to vote as are present in person or by proxy, where proxies are allowed, at a general meeting of which notice specifying the intention to propose the resolution as an extraordinary resolution has been duly given, such majority being either three-fourths or two-thirds, according as the bylaws provide, and in the absence of such provision a majority of three-fourths.
Mr. Phillips: There was no time frame in the initial clause. Now there is a 21 day time clause so that if an association wanted to change a resolution it would have to advertise 21 days in advance of the meeting to notify its members that this was taking place.
Hon. Mr. Kimmerly: Yes, unless there is a waiving of the notice properly made. That is consistent with other jurisdictions.
Clause 1 agreed to
On Clause 2
Clause 2 agreed to
On Clause 3
Mr. McLachlan: The proposal says after its second annual general meeting following the coming into force of the Act shall file amended bylaws with the registrar. The onus then rests upon the society to notice that they are in violation of the bylaws. Is there any intent upon the part of the government to check each one of the 362 societies to see if they are in violation of that? It leaves an onus upon some of them to do themselves, and these sorts of things go right over the heads of those already incorporated as societies. I have some concern that some of them may not find themselves in existence because they did not know about clause 3(3).
Hon. Mr. Kimmerly: This gives a period of 25 months, slightly over two years, to make any changes, if changes are necessary at all. We are expecting very few changes except for the extra-territorial registrations. That could be 26 months. It is possible for the government to go through all 360-odd societies bylaws, and we can do that, but we do not consider that a first priority.
Mr. Phillips: If a society wishes to comply with this Act and is not sure whether its constitution does comply can the society approach the government and go through it and make sure it does comply or tell them what they have to do to comply at no cost to the society?
Hon. Mr. Kimmerly: Yes, absolutely.
Mr. McLachlan: Although we have not gone through it totally there are provisions for striking societies off the registry if they do not comply with certain regulations. Will noncompliance with the new legislation be one of those?
Hon. Mr. Kimmerly: That generally stated, I can only answer that it could, but it is very unlikely. Noncompliance, or a breach is dealt with in Section 22 which goes through the situation. The best answer is to look at Section 22.
Mr. McLachlan: As a matter of record, can the Minister tell us how many societies on average do lose their registration per year - one, ten or twenty?
Hon. Mr. Kimmerly: Approximately five a year. That is an educated guess.
Clause 3 agreed to
On Clause 4
Mr. McLachlan: Where does this number come from? Rather than say four when you have a president, vice president, treasurer and secretary, is there a fifth mysterious person there somewhere?
Hon. Mr. Kimmerly: This is a traditional practice and the majority view around the country. Alberta and Saskatchewan have, I believe, the ability to form a society with only one person. It was thought that a society of one was not really a society and there is no public purpose in recognizing it officially.
Clause 4 agreed to
On Clause 5
Mrs. Firth: Perhaps the Minister could just tell us what the intent is here, and the relationship this clause has to clause 12(1)?
Hon. Mr. Kimmerly: The purpose is to distinguish, or set apart, a society from a business corporation. In lay language, or non-legalese, a corporation generally means an incorporated business, but in law, a corporation means the formation of a distinct entity. In law, societies are incorporated or are corporate bodies and we are trying to allow as much as possible here but we are distinguishing societies from corporations, which exist for profit. And the general restrictions are: you would not allow a society to have a capital divided into shares, or to declare a dividend to its members or to distribute its assets among its members. These are the crux of the difference between a society and a business corporation.
Mrs. Firth: I do not want to jump ahead, but when I read clause 12(1), Upon the issuance of a certificate of incorporation, the members of the society are established as a corporation, does that mean then that the society can issue shares? That seems to conflict with what the Minister is saying and that is the way I would interpret that.
Hon. Mr. Kimmerly: It does not mean that a society can issue shares. Clause 12(1) defines the legal status of a society and I freely admit that it is confusing, but it is necessary to put in the legislation a clause such as 12(1) in order to give the society the powers of incorporation. Incorporation is a legal status and it should not be confused with a business corporation.
Mrs. Firth: Does that mean then that a corporation under the Societies Act has a different definition than corporation in a business sense? I mean, if it is supposed to be easier for people to understand, I do not find it very easy to understand. It is very confusing. I see those two clauses as conflicting.
Hon. Mr. Kimmerly: I agree. It is an interesting point. We gave the Bill to a number of lay people and asked them to form a society under it as an exercise and to criticize the wording. They raised the same point. This is perhaps the most confusing section of the Bill - not Section 5, but Section 12.
There is simply no other way to give the incorporated society the powers of a corporation, or the powers of a corporate status without specifically saying so in the legislation. That is why it is necessary. I was arguing for hours to try to delete it from the Bill, but I was eventually convinced by the legal draftspeople that it is absolutely necessary to state in the Bill that a society has the legal status of incorporation. I recognize that it is confusing, but it is the best that we can do.
Mr. McLachlan: Can the Minister provide us with an example of an incorporated society that is presently chartered under our bylaws?
Hon. Mr. Kimmerly: They all are.
Mr. McLachlan: To me, the only basis for incorporating allows oneself to be sued. Why incorporate?
Hon. Mr. Kimmerly: The legal status of incorporation means that the society, or the corporate body, has the powers of an individual person, or is a legal entity that is distinct from all its members. It allows it to sue and be sued, to hold land, to have a continuous existence - which people do not - and all the legal incidence of incorporation.
Clause 5 agreed to
On Clause 6
Mr. McLachlan: Is there a change to the fee, or will it remain the same?
Hon. Mr. Kimmerly: It remains the same under the proposed regulations. It is $30.00
Clause 6 agreed to
On Clause 7
Clause 7 agreed to
On Clause 8
Mrs. Firth: In the list of bylaw provisions, is (g) - the appointment of accountants - an administrative detail? It is not required by the bylaws of societies. Could we have an explanation as to why that is there?
Hon. Mr. Kimmerly: There must be some mechanism to agree on the accounting procedures, or who the accountants are. This is a protection for all of the members of the society. It is universal, I believe, to require the appointment of accountants to be a fixed process, so that members know it can only be changed with notice and the like.
Mr. McLachlan: Some of the societies I am familiar with do not have the money to have accountants to do the books. Is there not a provision in the bylaw where two officers, or two directors of the society, can review the year-end statement and sign on behalf of, or in place of those accountants?
Hon. Mr. Kimmerly: There always has been. The problem is not the bylaws of a society. It is the requirement of the government to require annual statements to be filed. Presently, that asks for financial statements. The new system will put societies into three categories. The categories with a small amount of assets and cash flow will not require the more onerous accounting reporting.
Mr. Brewster: What would constitute a small, medium or large society?
Hon. Mr. Kimmerly: It is spelled out in the proposed regulations that were filed and attached to the Bill as circulated in Section 7. They are as follows: category A societies are societies with revenues of $150,000 or more in a fiscal year, or have assets of $300,000 or more, or received grants or donations of $25,000 or more, those are the larger ones; category B are revenues of between $25,000 and $150,000 or assets between $100,000 and $300,000, or received grants between $5,000 and $25,000; and the third category is all the smaller ones.
Mr. Brewster: At Haines Junction the community club turned all their assets over to the municipality, yet they still run as a society. They rent the community hall back to put on dances and such things as that. These assets are not really theirs; they belong to the local government; therefore, their actual intake would be very, very small, yet they have assets that they have built up over the years.
Hon. Mr. Kimmerly: In that case, they would be category C requiring the least amount of reporting; however, if they own assets in excess of $300,000 in value, there is a requirement to file an audited statement.
Mrs. Firth: What does the government mean by revenues that these categories of societies would derive?
Hon. Mr. Kimmerly: The total income or the gross, the money received.
Mrs. Firth: I also notice that they have grants and donations, which are revenues. Why has it been separated into grants, donations and revenues?
Hon. Mr. Kimmerly: The policy there is we have deemed it is in the public interest that societies, even if they handle small amounts of money, if they are receiving grants, there should have an accounting for those grants.
Mrs. Firth: Does that mean that the societies are not going to be able to receive donations on an anonymous basis? They are going to have to reveal all donations or grants made to the society?
Hon. Mr. Kimmerly: Absolutely not. It simply means if they have received grants from government bodies or donations from the public and there is no requirement to report the source, or the persons involved, or the amounts, there is simply a requirement to file a balance sheet. It is deemed in the public interest that if there are gifts - and these are almost all charitable organizations - or grants from the government itself, that there be an accounting.
Mr. McLachlan: What is the difference between the constitution by which a society may operate, and the bylaws that it must have, to operate?
Hon. Mr. Kimmerly: The bylaws are part of the constitution. In lay language, the constitution is sometimes called the objects. In lay language and in legal language, the constitution would include the bylaws.
Mrs. Firth: In the classifications of the societies, there would be times when a society would regularly be a Class C society, but because of some one-time project that they undertook, they could have received a large grant or donation that would have put them into another category. Can the Minister explain what happens then? Will the societies be bouncing back and forth between categories because of their financial position?
Hon. Mr. Kimmerly: Yes, it is possible. The categories are based on the current fiscal year. It depends on the financial activity of the society that year.
Mrs. Firth: I am moving on to the arbitration and mediation of disputes. Is it really relevant that we have that in there?
Hon. Mr. Kimmerly: Yes. It is a matter of public policy. We have had a lot of trouble. It is interesting that societies, especially the members of societies, generally want an absolute minimum of government interference. However, as soon as there is a dispute, they are knocking on the governments door and are calling for government action. I can think of some examples. It is entirely possible to have a bylaw to say that there will be no arbitration or no mediation. It is up to the society to determine the terms. The standard bylaws - if the society accepts those that do have an arbitration clause in them - it is deemed in the public interest that disputes are solved in this way.
Mrs. Firth: Under notice of breach, the registrar appoints an investigator. Is that a different function from that of the arbitrator? Is it going to be the same person?
Hon. Mr. Kimmerly: That is right.
Clause 8 agreed to
On Clause 9
Mr. McLachlan: The change will not be affected until it is filed with, and approved by, the registrar. Does the registrar have the power, under this Act, to refuse the change in the bylaw by saying that it may be contrary to the societys constitution and therefore is not approved?
Hon. Mr. Kimmerly: Yes, but some of these changes are purposeful changes of the constitution. If it is a legitimate change, it would certainly be allowed.
This is not a change from the existing policy. The purpose of it is to allow members to have a place of public record to determine any changes in the bylaws.
Mrs. Firth: The bylaw change by special resolution cannot come into effect until it is filed and approved by the registrar. We now have 21 days notice that has to be given for a special resolution. That is in the interpretation. In an urgent case of a membership wanting to do something immediately, is there not a concern that it could still cause a considerable delay in the membership being able to take action?
Hon. Mr. Kimmerly: Yes, and on page one, 21 days notice can be overcome by clause (ii), which is a resolution agreed to in writing by all the members who would have been entitled to vote at a general meeting. That could be achieved in a matter of minutes if all the members agreed and it was an urgent matter.
Mrs. Firth: I do not necessarily agree with the Minister. That could be quite a lengthy process. I see the potential of this: for example, if they wanted an amendment to their borrowing powers or something immediately, I could see some delay in that kind of urgent matter because of the process.
Mr. Phillips: How long does it take for the registrar to approve it once he gets it? Will the registrar approve it immediately, or is there a time period to review it?
Hon. Mr. Kimmerly: It is done immediately unless there is a particular problem about it.
Clause 9 agreed to
On Clause 10
Clause 10 agreed to
On Clause 11
Mr. McLachlan: I would like to ask about historical precedent in article 11, because this clause is the one that I feel is not adhered to as well as it should be. Mrs. Firth has asked previous questions about the use of Yukon in their names. There are so many that are close and all using the name Yukon. I have heard of companies being refused, but have not heard of societies being refused registration by reason of their name. Can the Minister cite examples?
Hon. Mr. Kimmerly: It has occurred. The only public policy here is to avoid confusion and to avoid names that are so similar the public is confused.
Mr. McLachlan: Faro has a Church of the Apostles. The department recently approved a new one in Porter Creek called the Church of the Northern Apostles. In my way of thinking, that is too close. There is a case that should have been denied and was not. I do not believe the department uses that regulation as well as it should.
Hon. Mr. Kimmerly: That is interesting, and it demonstrates the openness of the government in accepting the wishes of its citizens.
It is a fairly common practice, both in the business world and, therefore, societies, to have related names if it is deemed appropriate to have more than one legal entity, but they are associated. The particular situation of the Church of the Apostles, I am not familiar with, but I simply will not comment; it is beyond the scope of legislation in that it is about the application of legislation, in my view.
Mrs. Firth: Clause 11(1)(b) says, prohibited by the regulations. I cannot find anything in the regulations about names. Could the Minister explain what that means?
Hon. Mr. Kimmerly: There is nothing in the regulations about names but there could be in the future. This is a preventative measure; if there is a problem identified in the future, we can put a policy in the regulations.
Mrs. Firth: I get very concerned when we make laws that are preventative in nature. We, on this side would prefer not to have that kind of law. If you say it is prohibited by the regulations, and then there is nothing in the regulations about it, because it is simply preventative, I think it is very vague. I have some concern about whether there could be some political whim or political interference, or political decision about the issue, and we would prefer not to have that kind of open-ended clause in a piece of legislation, particularly when the regulations accompany it.
Hon. Mr. Kimmerly: I recognize that view. The power here is simply about the use of similar names. If it were not here, it would work as a disservice, because the section would only be used - and I could even say could only be used - to clarify a principle or a policy that would otherwise be followed by the registrar, in any event. The best example I can think of is the use of the word Yukon, especially as the first word in a name. We would like to be as open as possible, but it could be that if everybody wants Yukon as the first word, that we may decide, in the future, to abolish the word Yukon as the first word. Now we do not want to do that, because it is not a problem of that proportion now, but this is a provision that exists in most other jurisdictions. It is in the Business Corporations Act here and in other jurisdictions, and it is prudent to put it in.
Mrs. Firth: I do not see that as a valid argument. That is exactly what my concern is. We have just discussed tonight the use of the word Yukon. The Minister has indicated that it is becoming a popular request. I can see from the list of societies that it is. What the Minister is saying is that we are not going to prohibit the use of that word right in the Act where everybody can see it, we will do it in the regulations so that at some innocuous unspecified time, all of a sudden we will be reading a change of the regulations for the Societies Act where you are no longer allowed to use the word Yukon. I do not agree with that approach. If the government is going to change that they should be upfront and do it in the Act and state it here, but do not ask for an open-ended grounds for prohibition in the regulations. There are other things and the government could all of a sudden decide they do not want some other word used and all of a sudden it is in the regulations without having to come to the Legislative Assembly for any amendment to the Act itself. I disagree with that kind of approach.
Hon. Mr. Kimmerly: This is in the Business Corporations Act in this form, which I would submit is of more practical importance to individuals. It is a flexibility, which is universal, and I would submit that there is not a potential for mischief here. What government or political party or whatever is going to work mischief by the policy of names for societies? It is simply not a problem.
Mrs. Firth: I guess we will have to wait and see. The fee rejected by the registrar, pursuant to (2) and the first one, (2)(a) is objectionable. What do they mean by objectionable? Objectionable to whom, and by what nature or standards, what reason? Can the registrar just object to a certain name and the society will just not be allowed to be called by that name?
Hon. Mr. Kimmerly: This exists in all Bills that I have seen and the purpose is to object to obscenities. It existed in the Change of Name Act that we dealt with a few hours ago. There are some names that are insulting, that are obscene, and contrary to the public interest, and that is the purpose.
Mrs. Firth: If that is the case why is it not more specific? Objectionable is wide open compared to objectionable because of obscenities or pornography or insulting, or whatever the Minister has said. What is insulting to one person may not necessarily be insulting or objectionable to another. I think you are giving the registrar an open-ended ability to be objectionable without specifying on what grounds.
Hon. Mr. Kimmerly: There must be a degree of discretion here. The words is obscene would not cover obscene, but merely insulting. The word objectionable is used across the country and is thought to be the best word. I am unaware of any problems that this has had anywhere.
Clause 11 agreed to
Chairman: The enthusiasm here strongly indicates that we recess for ten minutes.
Chairman: The Committee of the Whole will come to order.
Hon. Mr. Kimmerly: I ask the Members to insert a comma, in the first line under clause 11.1, after the word have and before the word use. I submit it would be much easier to read if that comma was there.
Clause 11 agreed to
On Clause 12
Mrs. Firth: Clause 7, Incorporations Certificates, says: Upon receipt of an application and the prescribed fee, the registrar may issue a certificate that the society is incorporated. We know that the society is incorporated. To avoid confusion, could Effective Certificate in clause 12 not read: Upon the issuance of the certificate, a society has all the rights, powers and privileges of a natural person? Why do we have to go through this corporation routine?
Hon. Mr. Kimmerly: It is a good question. I tried to convince the legal address people of the same thing, and I was eventually convinced that it was not possible. The crux of the answer is that a natural person has different rights and powers than does a corporation or a corporate body. The intent here is to give the society all of the powers of both a corporate body and a natural person.
Mrs. Firth: Perhaps the Minister could explain that difference to me. I thought that, by law, a corporation had all of these rights. Is that not correct?
Hon. Mr. Kimmerly: Perhaps the best way to answer is to find a concrete example, and I do not have one immediately. Perhaps we can stand the clause and come back to it. I will give her this assurance, because I know the legislative draftspeople will read the Blues tomorrow morning. If we cannot find a concrete example, we will change it.
Clause 12 stood over
Clause 13 agreed to
On Clause 14
Mrs. Firth: Do I interpret that correctly - that the registrar must also approve this? And why, if I am interpreting that correctly?
Chairman: Clause 14. Mr. Kimmerly?
Hon. Mr. Kimmerly: Yes, because it would be a special resolution; however, practically, if it is a special resolution simply authorizing a debenture, and if it is in the proper form of a special resolution, it would be duly filed.
Clause 14 agreed to
On Clause 15
Mr. Phillips: What is the Ministers definition of a registered office? Could that just be a box number?
Hon. Mr. Kimmerly: It must be a place where it is possible to serve documents. It could be someones home or an agency, an office; it could be anything at all, but it must be possible to serve a document there. A simple box number is not sufficient.
Mr. Phillips: Is the Minister saying that it could just be, for instance, the address of the president of the society for that year, and each year they would have to come in as they changed presidents and give the new address?
Hon. Mr. Kimmerly: Yes, it could.
Mr. McLachlan: Is a box number not sufficient even though you can do it by registered mail, or double registered mail?
Hon. Mr. Kimmerly: No, not under this Act or the Business Corporations Act.
Mr. McLachlan: Is that because, in the legal sense of the word, the meaning of serve papers is to pass them to someone or something, and you must have the something, other than an undefined box number to do it?
Hon. Mr. Kimmerly: Basically, yes.
Mr. Brewster: I would like to ask the Minister if he thinks that is even possible with these small community clubs. They talk about putting the red tape down and making things easier. My experience with community clubs over the past 37 years is that you will have sometimes two to three presidents in the year. Usually a policeman is brought into a place, and of course he is new so immediately he becomes president, because everyone else is smart enough not to be there. And after he smartens up in six months, it is the next guy who comes along - and this means that they would be on the continual change here. This is a fact as to what goes on in community clubs outside. Once again we have draftsmen making papers who do not understand how people in rural Yukon live.
Hon. Mr. Kimmerly: I recognize that it is a problem in rural Yukon, but it could be a fixed place and remain constant as long as it is a place where documents may be served. The purpose here is to ensure communication with the society, and it is certainly the case that some societies change the registered office as the officers change; however, it is also possible to have a fixed place, and that is possible in rural Yukon as well as in Whitehorse.
Mrs. Firth: Perhaps we should just make the point that this clause about the registered office is not done for the convenience of the societies but for the convenience of the department or the administration who may want to issue documents. I agree completely with what the Member for Kluane has said, that organizations in small communities have correspondence sent to a care of address or a box number, and the time lag could pose some problem for them waiting for authorization and so on. Let us just chock it up to it being more convenient for the administration but less convenient for the societies that this legislation is supposed to be serving.
Hon. Mr. Kimmerly: I do not agree with that at all. The purpose here is to be a service or certainty to members of the public who may wish to deal with that society. It is extremely easy for the government as the government knows the names of the directors. This is not a service or a facility for the government, it is because societies are a legal entity, and members of the public need to know where they can find these legal entities.
Clause 15 agreed to
On Clause 16
Clause 16 agreed to
On Clause 17
Clause 17 agreed to
On Clause 18
Mrs. Firth: What is the definition of the word branch.
Hon. Mr. Kimmerly: A good example is the Yukon Order of Pioneers and the branches around the territory. The purpose is that the society is the same legal entity or corporation but exists in different branches or locations.
Mrs. Firth: Can the branches have separate or different bylaws, or do they have to be the same as the main branch?
Hon. Mr. Kimmerly: They may have separate bylaws, and they do have.
Mrs. Firth: Does that mean that the Livestock Association, or organizations like that, that call their branches chapters, will have to call them branches?
Hon. Mr. Kimmerly: No.
Clause 18 agreed to
On Clause 19
Mr. McLachlan: On 19(2), I am wondering what steps the registrar could take if a society is disbanding, and obviously has debts and no way to repay them, and all the members of the society have gone. Mr. Brewster has cited examples in small communities, and I have seen this happen, too. There is no interest, no money and no assets to dissolve, and there are outstanding debts. What do you do in a case like that?
Hon. Mr. Kimmerly: They are still a society, and you wind it up. If there are any assets, you pay the creditors out pro rata. It is the same as a business bankruptcy.
Clause 19 agreed to
On Clause 20
Mrs. Firth: In sub-clause (1), what does or an order of the registrar mean? I see that as them having some discretionary powers. There is nothing to define that.
Hon. Mr. Kimmerly: The registrar may require the society to do certain acts - for example, make a filing - and if the order is not complied with, it is the same as if the Act is not complied with.
Mrs. Firth: Would it not have been better to say, an order within the existing authorities of the registrar? This gives the registrar an open-ended order. It does not confine the registrar to the orders of the Act. They could make up new orders.
Hon. Mr. Kimmerly: I disagree, in that if a person objected to an order of the registrar on the basis that the registrar had no authority to make that order, they would go to court whether or not that phrase was in there.
Mr. McLachlan: I see clauses 19(2) and 20(3) as being conflicting. It was previously said that the surrender of the certificate would be accepted to dissolve the society if there were no debts. Now it is being said that the society can be dissolved, and then the registrar can appoint a liquidator to wind it up. These are contrasting.
Hon. Mr. Kimmerly: Clause 19 covers a voluntary winding up only. Clause 20 is a dissolution of the society by the registrar, which is involuntary. In both of the cases, these simply empower the registrar to appoint. It would only be used if there are assets to administer and liquidate.
Mrs. Firth: If a liquidator is required to wind up the affairs, who pays for that process?
Hon. Mr. Kimmerly: The society would pay for that. It would come out of the proceeds of the liquidation. If there were not enough proceeds, it would not be appointed.
Mrs. Firth: I cannot find that in the legislation. Am I missing it somewhere?
Hon. Mr. Kimmerly: It is not expressly stated, but it would follow the practice on all liquidations and bankruptcies.
Clause 20 agreed to
On Clause 21
Mr. McLachlan: With respect to sub-clause two, can the Minister foresee where someone might require an extra two months, over the 120 days, to complete this? Would extraordinary permission in a case like that be granted if circumstances warranted it, like the treasurer was out of the country in Hawaii or a situation similar to that.
Hon. Mr. Kimmerly: I am advised that the registrar does it all the time and that the power is in the word may. If the registrar is convinced that things are happening, albeit slowly, he or she will not act and give extra time.
Clause 21 agreed to
On Clause 22
Mrs. Firth: On Clause 22(1) can the Minister give us an example of where or why this would happen? Is it similar to what happened in Dawson City? Is that the kind of circumstances we are talking about?
Hon. Mr. Kimmerly: Dawson City is the most recent example where exactly this occurred, and it is put in here and it exists in the old Act in a slightly different form. It is as a service to members of societies who have a complaint.
Clause 22 agreed to
On Clause 23
Mrs. Firth: For the societies to comply with the new law regarding the date of registration of members, (b), are societies going to have to go through their whole membership and get dates on which everyone became a member? Is it a retroactive thing?
Hon. Mr. Kimmerly: No, the only purpose is to keep it up-to-date and keep it available. This is not a requirement to register it with the government. It could be kept private among the members if the members wish.
Mr. McLachlan: What does the Minister envision in 23(d), the class of membership? You have already said we cannot have voting shares.
Hon. Mr. Kimmerly: There may be different kinds of members: voting members, non-voting members, honorary members, lifetime members, whatever.
Mrs. Firth: I assume that the Member, in 23(2), means any member and includes all the categories the Minister mentioned.
Hon. Mr. Kimmerly: Yes, that is accurate.
Mr. Phillips: With respect to 23(2), The society shall keep the register at its registered office. Many small societies have an ongoing membership drive and have membership chairmen who are in charge of that drive. Lots of times, there are people out there with memberships who have not turned them into the membership chairman and, sometimes, do not do so for a month or two. Is there some requirement that, after this is passed, they would have to immediately turn them into the membership chairman or the registered office so they would know on a day-to-day basis - if the government required it - how many members they had and who the members were?
Hon. Mr. Kimmerly: No, there is no time limit expressed here at all. That means that time would be a reasonable time which, in different societies, might be different.
Clause 23 agreed to
On Clause 24
Mr. Brewster: I understand subclause (3) to say that an RCMP who has come into a community and has been transferred out, could be chased for two years if there is something wrong, or if a false application was made during the time he was there? I can see that it would be good-bye to all volunteers in any association. That is absolutely ridiculous.
Hon. Mr. Kimmerly: It is only an offence for the society to contravene the Act, the regulations or an order for an individual to be charged as a person whose only offence was to knowingly make a false statement, which is fraud. A prosecution of a fraud here is reasonable.
I would point out that it does not say two years from the time the subject matter of the offence was discovered. It is two years from the actual offence. Now these offences, being fraudulent, would not be discovered for some period of time, characteristically. This is consistent with the time period in other jurisdictions.
Mr. Brewster: I just made a trip up and down the road, and one of the real complaints of the presidents of the community clubs was that they are completely snowed in by papers and red tape to fill in and all these things. Everytime something happens, some inspector jumps them and, when they take a look at this, there will be very few people who ever run for president of a community club. They would be crazy to do it.
Mr. Nordling: Why was this not left to be dealt with under the provisions of the Criminal Code to be consistent with the Change of Name Act, where fraud under that Act is left to be dealt with under the fraud sections of the Criminal Code. We were doing away with red tape in that Act. The Minister agreed, or took our advice, that we should be cutting down on these offences - and here we have it.
Hon. Mr. Kimmerly: This is an offence that exists in the old Act. It is possible, in this case, that there could be an offence that is not fraud. It depends on the circumstances.
Mr. Nordling: That was exactly my point with the Change of Name Act. It had an offence section in the old Act, and under that Act there could be an offence that was not fraud. I do not think that the government is being consistent in its legislation.
Mr. McLachlan: What is the crime? What is the penalty if one is convicted of an offence under this Act?
Hon. Mr. Kimmerly: It is the standard penalty under the Summary Convictions Act, which is a $500 fine or six months in jail or both.
Mr. Nordling: If we are dealing with the Summary Convictions Act, the time limit for that is within six months. Why did we find that we needed two years here instead of a standard six months to bring the prosecution?
Hon. Mr. Kimmerly: It is because of the nature of false statements. They are generally not discovered immediately, and the two years was seen as a reasonable time and was adopted from the legislation of other provinces. This makes our legislation consistent with other provinces and fulfills a need that is appropriate for the Yukon also.
Clause 24 agreed to
On Clause 25
Mrs. Firth: Clause 25(f) is that good old respecting-the-names-of-societies clause, including prohibiting them being included in the regulations, and it is not in the regulations again. Could the Minister tell us why he has to put it in the Act twice when it is not in the regulations?
Hon. Mr. Kimmerly: It is the same issue as we discussed under Clause 11, and I would agree that it might well be possible to put it in one place or the other but not both.
Mrs. Firth: It looks like a bit of overkill and does not give me any reassurance of the justification that the Minister gave when we talked about clause 11. Perhaps the Minister would like to address it in some form.
Hon. Mr. Kimmerly: No, I would not. There is absolutely no harm here in the way it is written. The Act could be shortened by three or four words by taking it out of either clause 11(1)(b) or clause 25(f), but there is a service in referring the reader to that issue in both of those clauses. On balance, I would suggest it could go out, but it reads better and more consistently if it is in.
Mrs. Firth: I do not agree with the Minister that it is being consistent. It is again showing inconsistency because it is not in the regulations. The Minister freely and readily admitted that, yet they twice identified it in the Act. He has tried to reassure us that no government would want to upset the societies and yet it is put in here specifically twice. I am quite prepared to remove either 11(1)(b) or this clause. To be consistent, we would want to make it short, sweet and to the point. It raises a suspicion just having it identified in there twice.
Mrs. Firth: I move the Chairman report progress on Bill No. 33 before we clear this clause 25.
Clause 25 stood
Hon. Mr. Porter: I move that the Speaker do now resume the Chair.
Motion agreed to
Speaker resumes the Chair
Speaker: I will now call the House to order. May the House have the report from the Chairman of the Committee of the Whole?
Mr. Webster: The Committee of the Whole has considered Bill No. 9 entitled Change of Name Act and Bill No. 78, entitled An Act to Amend the Income Tax Act and directed me to report same without amendment. Further, the Committee has considered Bill No. 14, entitled Miscellaneous Statute Law Amendment Act, 1987 and Bill No. 33 Societies Act and directed me to report progress on same.
Speaker:You have heard the report of the Committee of the Whole. Are you agreed?
Some Members: Agreed.
Hon. Mr. Porter: I move that the House do now adjourn.
Speaker: It has been moved by the hon. House Leader that the House do now adjourn.
Motion agreed to
Speaker: This House now stands adjourned until 1:30 p.m. tomorrow.
The House adjourned at 9:27 p.m.
The following Sessional Papers were tabled November 30, 1987:
Report of Clerk re deductions from indemnities of Members (Speaker - Johnston)
Notes for a Speech by the hon. Tony Penikett, Leader, Government of Yukon, to First Ministers Conference, November, 1987 (Penikett)
The following Legislative Return was tabled November 30, 1987:
Number of young offenders in custody at 501 Taylor St. (M. Joe)
Oral, Hansard, p. 102