Monday, May 1, 1995 - 1:30 p.m.
Speaker: I will now call the House to order. At this time, we will proceed with silent Prayers.
Speaker: We will proceed with the Order Paper.
Introduction of Visitors.
Are there any Returns or Documents for tabling?
Are there any Reports of Committees?
Are there any Petitions?
Are there any Bills to be introduced?
Are there any Notices of Motion for the Production of Papers?
Are there any Notices of Motion?
Are there any Statements by Ministers?
This then brings us to the Question Period.
Question re: Energy conference
Mr. McDonald: In the aftermath of the Yukon Council on the Economy and the Environment conference on energy over the weekend, many people have expressed a concern that too much had to be addressed in too little time, and that there was not proper discussion from a balance of interests about what items ended up being on the agenda, and, in fact, the day revolved around government energy company agendas.
Did the government intend that the conference should explore all energy issues, including energy supply options, or was the conference designed to reinforce the government's decision to go with a coal-fired electrical generating plant?
Hon. Mr. Ostashek: As the Member is aware, the conference on energy was held as one of the sectoral conferences on the economy. It was in that respect that the conference was held.
Invitations to attend the conference were sent to a vast majority of organizations and people in the Yukon. Everybody had the opportunity to attend the conference, submit briefs or attend the conference in person to make their views known. The conference was open to everybody, and it was in no way designed to limit debate on any issues.
Mr. McDonald: Many people have expressed a concern that the invitations to the conference were late and that many groups who had a lot to say about energy on a number of energy issues did not know what was on the agenda until approximately a week or two before the conference actually took place.
The Government Leader is reported in the news saying that the government is going to decide if it will go with a coal-fired electrical generating station in the fall. Will there be a proper, public consultation process on energy options between now and then to discuss other options, besides coal-fired electrical generation?
Hon. Mr. Ostashek: Certainly, there will be. I had the whole transcript produced of what was aired on the radio this morning. I thought the Members opposite would have seen that. I said that quite a bit of work still needs to be done. There will be other conferences and other debates on the issue about whether or not coal is the most viable option, or if there are other viable alternatives. As a government, we are looking at the most cost-effective way of meeting the electrical demands of Yukon consumers.
Mr. McDonald: A number of people have expressed some bewilderment that they do not know precisely what the government is promoting. At the conference, the discussion papers that were put out by the NDP government were also issued, and people were unsure if those papers reflected government policy or not.
The consultation process on energy policy was supposed to have been part of Economic Development's business plan, which was supposed to have been tabled in this Legislature a month ago - or else the Department of Economic Development was going to have to sit through Question Period. Where is the business plan, and what does the consultation process entail?
Hon. Mr. Ostashek: That question would be better put to the Minister of Economic Development. I want to clarify for the Member opposite again that this was not the purpose of this conference.
It is a sectoral review of the economic situation in the Yukon, and about where government should be directing its resources. This occurred after much debate in the Legislature over the last couple of years, and after a lot of criticism from the Members opposite. This is the second such conference. I believe the next one is going to be on forestry. They will continue to occur as we go through the whole economic spectrum to determine where government should be directing its energy to create sustainable economic development in the territory.
Question re: Yukon Council on the Economy and the Environment, business plan
Mr. McDonald: I will direct the next question to the Minister of Economic Development. I do believe that it is important to take note of the fact that these conferences are only useful if the public speaks and the government listens, not if the government speaks and the public listens, which was a criticism of the conference this past weekend. I would like to ask the Minister of Economic Development where this business plan is, and what the consultation process will be for an economic policy.
Hon. Mr. Fisher: The business plan will be released some time in the month of May. In the business plan, there will be an energy action plan. However, the energy action plan is not an energy policy. Following the action plan, there will be consultation, and then a process for the development of an energy policy will be developed.
Mr. McDonald: I would remind the Minister that he promised this the end of March and we still have not seen the Department of Economic Development sit in the gallery to watch us debate Question Period.
Much of the talk about increasing energy supply revolves around the need to service the mining industry, and the government listed a number of mines a couple of years ago and this last December that were in the permitting stage. Can the Minister of Economic Development tell us how many new mines are going to be going into production this year? Can he also tell us what the fate of the Casino property of Western Copper is, so that a lot of the talk of a revitalized mining industry can come home to us in terms of actual mine development?
Hon. Mr. Fisher: I think we have discussed several of the mines during budget debate. The Casino property is probably still a few years away from actually going into production. Western Copper will be doing additional work this summer. We will be talking more about Loki in the next day or so. There are several mines in different development stages.
I cannot say that any one mine will be in production this fall, or next spring. I cannot say that. It will depend on permitting, and so on. Several mining companies are working toward that end at this moment.
Mr. McDonald: Is it not the case that none of those mines are going to be operating this year? Is it not the case that Casino mine is eight or 10 years away, as the Minister of Community and Transportation Services suggested last week? Is it not the case that Western Copper is years away? Is it not the case that Loki Gold will not be going ahead this year, and that the government is, in fact, dangling jobs in front of people in an unscrupulous manner in order to satisfy their need for work? Is all this not the case?
Hon. Mr. Fisher: I do not, for one moment, believe that there will not be a lot of mining activity in the Yukon Territory. There has been up to this point.
The Member talks about dangling jobs in people's faces. He should look at the unemployment statistics right now. We have the lowest unemployment rate in over 10 years. We also have the highest number of people employed for the same period of time.
There is all sorts of activity in mine development. The Kudz ze Kayah project by Finlayson Lake employed people in your riding last year, Mr. Speaker. There are jobs there again this year. Loki Gold has had employment opportunities.
I would like to see any or all of those mines in production this year, but I cannot say whether or not they will be.
Question re: Economic forecast
Mr. McDonald: I want to see real jobs, too. I do not want to see - as in the words of Jean Chretien - that this is all just a mirage in order to attract votes. All this talk in the last couple of years about getting mines going has ended up with no mines and high expectations. We are even talking about a coal-fired electrical generating plant to be decided upon in the fall of this year.
Where is the economic forecast the government promised us that would give us a sense of where the government was going with the economy? The deputy ministers have been reviewing it for over a month for political correctness. Where is this forecast, which would normally have been tabled months ago?
Hon. Mr. Fisher: I do not believe it was tabled at all in 1992.
The economic forecast will be tabled this week.
Question re: Coal-fired electrical power generation
Mr. Cable: I have some further questions for the Government Leader on the same topic of the Braeburn coal deposit and burning coal for electricity. The Government Leader was quoted on CBC Radio this morning with respect to burning coal for electricity. "Government Leader says the decision to burn coal for electricity is an easy one for him to make. We made that decision a long time ago."
Could the Minister be a little more specific on when the decision was made? Was it before or after the coal report, entitled "Coal-fired generation in the Yukon", dated March 1995, was made public?
Hon. Mr. Ostashek: The Members opposite seem to be of the opinion that coal-fired electrical generation is some new phenomenon that has come to the fore, not taking into consideration that a lot of the power around the world is produced by coal-fired generation. One does not need to be a rocket scientist to figure that out.
The decision about burning coal to create electricity was made when we changed the mandate of the Yukon Development Corporation and the Yukon Energy Corporation and said that it would be all right for them to explore the feasibility of using coal to produce electrical generation.
Mr. Cable: The Government Leader was not talking exploration; he was talking about a decision that had been made.
The Yukon Council on the Economy and the Environment held its conference last Saturday on coal for electricity production. If, as it appears, the decision to burn coal has already been made, what role does the government see for the recommendations that will come from the council? Is the council simply rubber-stamping the government's already predetermined position?
Hon. Mr. Ostashek: Again, Members opposite seem to have a misconception about what this conference was for.
I just stated in my reply to the Member for McIntyre-Takhini that the conference was a sectoral conference of the economic review of the Yukon, and about where the government should be directing its resources.
The Member opposite quoted part of the transcript from this morning, but I believe that the Member should quote the second part, where it states, "I think there is quite a bit more work that needs to be done." I would hope by this fall the government would be in a position to say whether or not the government is going to go ahead with a plant at this time and what size that plant would be. There are a lot of decisions to be made.
Mr. Cable: Let us get into that. The Government Leader has spoken previously about an agreement in principle. What are the principles that the Government Leader is talking about? Is it cost? Is it the environment? What has to be examined before the decision is made?
Hon. Mr. Ostashek: Certainly, cost is going to be one of the issues that has to be addressed, but before we get to costs the government has to examine the projections about what the demand is going to be in the near to mid term and in the long term. Those are the decisions that have to be made.
Environmental questions will be addressed by the environmental review that is conducted for any project that takes place in the Yukon. Certainly, if a project is not environmentally friendly and does not meet the criteria set by the Government of Canada, the project would not go ahead. There is an environmental review process in place to address the very issues that the Member is concerned about.
Question re: Coal-fired electrical power generation
Mr. Penikett: Everything we see and hear indicates that the Yukon Party government's mind has already been made up on this subject, and that all of the research and consultation is designed only to support its preconceived notions on this question. I want to ask the Government Leader to confirm if it is true that the energy Minister of this government, in meeting with interested parties 18 months ago, said that Cabinet had already made up its mind to go with coal, before any research had been done on the question whatsoever - is that not true?
Hon. Mr. Ostashek: No, that is not true. What we said 18 months ago was that it was all right for the Yukon Energy Corporation and the Yukon Development Corporation to explore the use of coal for electrical generation. Quite certainly, costs play a very important role in this. The Member opposite is fully aware that costs of coal generation in other areas of Canada are very, very attractive, and I think Yukoners should be exploring it.
Mr. Penikett: A director of the Yukon Development Corporation has told me that, over a year ago, the Government Leader told it to forget hydro; it is going to go with coal. That was a decision that was communicated, regardless of risk, plant capacity, cost, government guarantees - any of those questions. Can the Government Leader confirm that that is what he told the directors of the Yukon Development Corporation board?
Hon. Mr. Ostashek: Here we go with hearsay evidence in Question Period again. What I told the Energy Corporation board was that it ought to be exploring the use of coal, and that is exactly what it is doing.
Mr. Penikett: It will be interesting to know if the Minister told it the second part of the question, which was to forget hydro. Obviously, in terms of public policy, we are talking about a contest between a privately owned coal plant, which is being favoured by the Cabinet opposite, and the other option, in terms of a major plant, which is hydro and is owned by the people of the Yukon. Everything we see seems to indicate that this is already an ideological decision, and not an energy or an environmental one. Can the Government Leader tell us, regardless of environmental reviews that will be done by someone else, what cost factors will be taken into account. Is this government open to providing government or financial guarantees to build an economic plant with capacity surplus to the demands of the Yukon economy at the moment?
Hon. Mr. Ostashek: That is purely a hypothetical question at this point, because we have not gone that route yet. We have to do a feasibility study before we go ahead to make any decision about what size of plant, or if we are going to have a plant at this time.
I will say one thing. This government has made a policy decision that we want to keep jobs in the Yukon; we do not want to be creating jobs in the oil fields of Alberta by deciding to burn diesel fuel here, as the past administration did.
Question re: Energy policy
Mrs. Firth: That is interesting. The contractors association in Alberta will probably clean up on contracts - keep business here in the Yukon.
I have a further question about energy policy to whomever would like to try to answer it - the Government Leader or the Minister responsible for Economic Development. For the last two and a half years, we have been listening to this government talk about how it will have the most comprehensive energy policy in the history of the Yukon. In that commentary, it never hesitated to criticize the previous government because it did not have an energy policy.
Two and a half years later, we are still waiting for an energy policy. The Minister of Economic Development said this afternoon that this business plan would be ready in May, but it will have an energy action plan, not an energy policy.
Before all these decisions are made with respect to what energy sources will be agreed to, what money will be spent, what direction will be taken, are we ever going to see an energy policy from this government?
Hon. Mr. Fisher: I am quite sure the Member for Riverdale South heard me respond to the Member for Riverside about the comprehensive energy policy. Our government believes it is more important at this particular time to develop the capability within government to provide a flexible response to energy issues.
Yes, we will be developing energy policy, but I do not know exactly when we will come out with one that the Member for Riverside can say is our comprehensive energy policy.
Mrs. Firth: It is the Member for Riverdale South.
It is not me who has been saying this government would have a comprehensive energy policy. This government has been telling us that for the last two and a half years.
That is the exact concern that Yukoners have, the mining industry has, we have as Members of this Legislature - the response of the Minister today saying, "We are going to have a flexible response about energy issues and decisions that are made."
That gives me a great deal of concern because, all of a sudden, one must be a friend of the government to be in on that flexible policy. It is not what you know, it is who you know, who you can phone up, who you can call up and talk to.
I want to know when this government is going to have some principles laid out, so that everyone who is interested in participating in these programs knows what the rules are, knows if they are going to be treated fairly, consistently and knows whether or not there is even any point in approaching this government. When is that going to happen?
Hon. Mr. Fisher: The reason I mentioned the Member for Riverside is because he is the one who keeps asking about a comprehensive energy policy and I keep saying, essentially, that we are developing an action plan. Our action plan will lay out what our goals are for the energy sector development. This is what we hope to achieve with our action plan. That will lead to the eventual development of an overall policy.
Mrs. Firth: Let us just draw this conclusion. I think it is a fair one to draw. These guys are going to be here for another 18 months, period. We are never going to see an energy policy from this government, just an action plan. Now, the Minister said this afternoon that it has some goals it wants to achieve. Can the Minister stand up this afternoon and tell us what those goals are?
Hon. Mr. Fisher: We want to look at many methods of generating electricity. We want to look at our oil and gas sector, and there are all sorts of things that we want to look at. They will all become part of an overall energy policy.
Question re: Education, diagnostic testing report
Mr. Harding: I have a question for the Minister of Education.The assessment report that the government initiated is a very important piece of work that has just been released by the government. Given that school administrators and teachers are in their busiest time of year - May and June - I would like to ask the Minister what his time line for consulting with the stakeholders will be, and when does he expect to have a formal response available, given that fact?
Hon. Mr. Phelps: Consultations will take place during May and June, and the report and final decision will be made toward the end of June. Whether or not that is adhered to precisely or is allowed to slip a bit, we will see, as the consultations take place.
Mr. Harding: I would recommend to the Minister that all partners get equal play in terms of reviewing the recommendations.
One of the recommendations in the report that I am very pleased with is the calling for the elimination of Strand testing as a compulsory measure, which is something that was vehemently defended by the Yukon Party after it initiated it last year. What is the Minister's initial reaction to that recommendation?
Hon. Mr. Phelps: What we have is a draft report with draft recommendations. The next stage is to have the department consult with the various partners in education. I am not going to prejudge any part of the report.
Mr. Harding: It would be a departure for this Minister not to prejudge policy matters in education.
The last question I have regarding the report is a reference to the long lines of teacher and parent requests for special- needs assessments, which are two to three years behind schedule. We have already talked about the problem regarding the number of psychologists in the territory, and the resources that we need to undertake that task. How will the Minister ensure that any new assessment strategy recognizes the problems we have with assessment times in the system?
Hon. Mr. Phelps: Once again, let us not put the cart before the horse. First, we are going through the round of consultations. Nothing is finalized with regard to the cumulative exams until that process is complete. We have already talked about the need to replace the northern psychologist. That is in progress now. The position has been transferred from Dawson City to Whitehorse. That was done after some consultation.
In addition, there has been an intergovernmental review of the special needs programming. That is proceeding, as well.
Question re: Porter Creek high school
Mr. Harding: It will be interesting to see what those reviews yield.
I want to ask the Government Leader about a new issue with a new question.
The Government Leader and a senior Cabinet Minister have said that they support a new high school in Porter Creek. Yet, last week, we learned that the Minister of Education stated that he does not share that view at this time. He has communicated that to the school councils. I would like to ask the Government Leader if the Minister of Education is accurately reflecting government policy in his response to the school councils?
Hon. Mr. Phelps: I stand here as the Minister of Education. I have answered this question in the House on numerous occasions. It is improper, as I am sure the Member knows, to question individual MLAs on what their positions are. We are here to discuss government policy and what I see as reflecting government policy to date; namely, that the issue of the high school is still a matter that is under review and consultation.
Mr. Harding: The Government Leader is not an independent MLA; he is the leader of this Yukon Party government. This is the party that promised, in their four-year plan, a new high school in Porter Creek.
The Government Leader said that he supports a new high school in Porter Creek and the Cabinet Minister, who is an MLA there, says that he supports a new high school in Porter Creek, but the Minister of Education says that he does not support it. His position is in direct contradiction. Who is setting the agenda for this government? Is it the Government Leader or his Cabinet Minister?
Hon. Mr. Phelps: The Cabinet sets the agenda and determines what the policy of the government is. What I have stated so far reflects exactly what Cabinet policy is to date, which is that the issue is under review and consultation.
The questions put forth by the Member opposite are out of line, out of order, and are simply a fishing expedition conducted in a rather incompetent and clumsy fashion.
Mr. Harding: I am sure the parents in Porter Creek will be impressed with the Minister's answer.
The Government Leader and a Cabinet Minister have attended meetings with parents and school council members and told them one thing to their face, and that is that they support a new high school in Porter Creek. They have then gone to Cabinet and it is obvious, based on the Minister's answer, that they said something quite different. The parents and the people of Porter Creek are not getting the real story and I think people are getting sick of politicians doing this.
I would like to ask the Government Leader, as the Minister of Finance, this: given this government's election promise to build a new high school in Porter Creek, is the Minister prepared to make a commitment to fulfill his election promise as the Minister of Finance?
Hon. Mr. Phelps: If the Member opposite always fishes in this very clumsy and awkward manner, I would hate to go out in a small boat with him, because I am sure he would sink the boat and tip it over.
The position of this government is clear. We have had discussions, and I am reflecting the policy of Cabinet. The Members opposite can quite rightfully ask the individual Minister of this government who is responsible what the policy of the government is. They have asked this question and I have stated the government's policy. Again, the matter is under review and under consultation at this point in time.
I would suggest that perhaps, given the time of the year, the Member could pick up a good life jacket at one of the local sporting goods stores before he goes fishing. The Member ought to do that, because he is really putting himself in danger.
Question re: Government employees, travel costs
Ms. Moorcroft: I have a question for the Minister responsible for the Public Service Commission. Last week, the Minister provided me with a list of outside travel for the Public Service Commission, which cost just over $51,500. I have asked - and I know other Members of the Legislature have also asked - for the breakdown of the total travel costs for the public service inside and outside of Yukon. Why is the Minister refusing to provide that information, and does he have even a ball-park figure of what is spent on travel inside the Yukon?
Hon. Mr. Phillips: I thought we provided the information that the Members wanted in the return. I will take the Member's question as a representation, and I will follow it up.
Ms. Moorcroft: Perhaps the Minister should also read the written questions on the Order Paper.
When the Health and Social Services budget was being debated, the matter came up about a worker who is seconded to the Ross River Dena First Nation and has a travel budget of $25,000, which has gone over by $3,000 or $4,000 this year. Is it common to have a $28,000 travel budget for one employee in one department?
Hon. Mr. Phillips: I am not sure about that, but I would imagine that some employees whose jobs are closely tied to various communities would have larger travel budgets than others, but I can get back to the Member on it.
Ms. Moorcroft: This government has chosen to take some positions out of communities and relocate them to Whitehorse, ostensibly because of the high cost of travel. However, none of those positions had a travel budget as high as $28,000. I believe there are empty Yukon Housing Corporation units in Ross River, and I would like to ask the Minister - as a means of supporting the community and saving money by reducing travel costs - if the government is prepared to look at decentralizing that position to Ross River?
Hon. Mr. Phelps: I am arising as the Minister for Health and Social Services. The position under question is a position that is simply a secondment to the First Nation in Ross River - the person who is responsible for running the development corporation for the Ross River Dena. Last year, included in the contract was a travel allowance of $25,000. That was exceeded by $3,000 or $4,000, and we discussed that during review of the budget. At that time, I also advised the Member opposite that we were going into another year or secondment, and that the Ross River First Nation is going to be responsible for picking up the entire travel budget of that individual.
I do not think that there is any question but that he has assisted the people of Ross River in very valuable ways. He has been responsible for the signing of all kinds of contracts that have lead to training, employment and partnerships.
I am a little appalled that the Members opposite view this kind of assistance to a First Nation in such a negative fashion. I would hope that it is only a matter of politics that they would be upset to see a First Nation move ahead as vigorously as has the First Nation in Ross River. The social improvements in that town, as a result, are really quite amazing. I hope this is just a tacky political position that is being taken by the Member opposite and not something that truly reflects their feeling that, somehow or other, First Nations ought not to be assisted in their economic development.
Question re: Visitor exit survey
Mr. McDonald: That will not ring true in rural Yukon, I can tell the Minister that.
I have a question for the Minister of Tourism, and I would like to begin by thanking him for the briefing last week concerning the visitor exit survey. Some interesting information was generated by the survey, including the fact that, since the last survey in 1987, the number of visitors is only marginally up and real dollar expenditures are down.
What conclusions is the government drawing from its marketing efforts if tourism is providing less of an economic impact on the territory?
Hon. Mr. Phillips: That is the reason we do visitor exit surveys - to determine what the impact and trend is. Even when Alaska did theirs, similar trends were found where the actual spending per person was down. It is not a surprise to me, and it should not be to the Member opposite. In the last few years, many people have been less extravagant in their spending when they do travel. That is one indication.
As far as the numbers, I only wish the side opposite had supported some of our marketing initiatives and understood the international marketplace, where there are now hundreds of other nations spending millions of dollars trying to attract people to their communities. It is an extremely competitive market, and the Yukon is doing well just holding its own. We see this improving in the future.
Mr. McDonald: I say to the Minister, "Bon voyage. Enjoy yourself around the world." The government has based approximately $20 million in a capital plan to build things for tourists to do. However, the visitor exit survey said that over 50 percent of the tourists liked the Yukon wilderness the most. Only six percent mentioned attractions as something they remembered enjoying.
Given that the tourists said they would like to spend more time in the Yukon - mostly on their way through to Alaska - why would the government not invest in something the tourists said they liked - the wilderness - and less on something the tourists only marginally appreciated - like the buildings and things to do?
Hon. Mr. Phillips: I thank the Member for his question. He is right - 51 percent said they liked the scenery, but look around - that is what one sees most of when one travels through the territory. Thirteen percent said they liked the people. Again, when one comes to the Yukon, what is the one thing that many of us notice more than anything else? It was the friendly people. Six percent said they saw attractions, and it is only six percent because there are very few attractions in the territory compared with other jurisdictions.
When one talks about the other aspects of the survey, people said they liked to see and view attractions. The more realistic attractions we create, the more opportunity there will be to keep people here longer. It is just really unfortunate that the side opposite is totally against these projects, which they have been from day one.
Mr. McDonald: I wish we could have doubled that convoluted logic in the estimates. It is too bad that they tabled the visitor exit survey after the tourism estimates were over. I guess these tourists did not visit the Legislature, or they might perhaps have had a slightly different impression of what friendly Yukoners were all about.
Park development would offer tourists something to do that is relatively inexpensive and responsive to their needs. The B.C. government did a economic analysis of its park system that showed how valued their parks were to the provincial economy. Why would the government not be more interested in park development to give the tourists more of what they want instead of focusing on the very high-cost options of providing very expensive facilities, not only in capital construction costs, but in operating costs?
Hon. Mr. Phillips: What people want now is wilderness. It does not have to be a park, so to speak. We have about 86 or 87 percent of the Yukon that is total wilderness. We have rivers that run throughout this whole territory with very little or no development. We have trails that run throughout this territory with very little or no development. We are working with the Tourism Wilderness Association, and others, in developing a product. In the case of the Yukon River, we are identifying specific sites along the river. We are also working with First Nations on other sites. This is the kind of product that people are looking for. That is exactly what we are doing. We are developing that product.
Speaker: The time for Question Period has now elapsed. We will now proceed with Orders of the Day.
ORDERS OF THE DAY
Bill No. 7: Second Reading
Clerk: Second reading, Bill No. 7, standing in the name of the Hon. Mr. Phelps.
Hon. Mr. Phelps: I move that Bill No. 7, entitled An Act to Amend the Hospital Act, be now read a second time.
Speaker: I has been moved by the Hon. Minister of Health and Social Services that Bill No. 7, entitled An Act to Amend the Hospital Act, be now read a second time.
Hon. Mr. Phelps: Very briefly, this is a short and straightforward act that does two things. Firstly, it enables the Yukon Hospital Corporation to take on the additional responsibilities that would come to it once the Thomson Centre and Macaulay Lodge are transferred to the corporation. It also enables the hospital, should this decision be made in the course of negotiations, to take on the responsibilities for community health services and programs.
In either case, does this necessarily mean that the hospital must take on all such responsibilities. As people in this place are aware, negotiations have been ongoing about the transfer of the Thomson Centre and Macaulay Lodge. As well, there has been some sense of urgency, at least on the part of the federal government, with regard to negotiations on phase 2 of the repatriation of health programming.
The other basic change is to increase the board by two members, from 12 to 14. One of these members will be nominated by First Nations and one additional member is to be chosen from the public at large. In consultation with the hospital board and others, the feeling is that 14 should be the maximum number of people on the main board, and that that would be sufficient, and that to expand the board membership much beyond 14 would probably create some problems.
The hope is that we will be able to pass this bill. The hospital board will then be enabled to take on programming if phase 2 goes ahead, and will then be enabled to take responsibility for the operation of the Thomson Centre and Macaulay Lodge.
Mr. Penikett: I have already indicated, during the debate on the Minister's estimates, concerns I have about the direction in which he is moving, especially in respect to the governance of non-hospital-based programs through a board that was originally constituted by me, through an act in this Legislature, as the directorship of the hospital. Nonetheless, I will not vote against this bill, but I will be reiterating some questions I previously asked and hope that the Minister will entertain them hospitably in Committee, so that we can have some brief airing of these questions again before this becomes law.
The Minister mentioned the size of the board. When we were structuring a board of 12, there was a lively debate about whether or not that was too large, but we had made a serious effort to make sure that a wide range of interests would be represented on the board and, in fact, we did something that had not been done much before in Canada, which was to take away powers of Cabinet to unilaterally appoint and restrict the appointments to nominations from certain interests in the community. We had hoped that those interests were representative enough of the varying views in the health community that we would have a well-balanced board. There will be those followers of recently fashionable management theory who will argue that a board of 14 is too large, as there were people who argue that a board of 12 is too large, but I will not be terribly hung up on that point.
I have said before that there are a lot of writers in the health and management fields who would argue that it is a fundamental mistake to combine the managements of an acute-care facility with continuing care programs, such as those provided now by the government through a range of services, including senior citizens homes, home care program with visiting support for house-bound seniors, nursing homes, such as Macaulay Lodge for people who receive a high level of care and, ultimately, the extended care facility, where they receive care in the late stages of life and which is also a facility that provides care for psycho-geriatric patients and injured workers.
It has been argued that these are different program models and that, if continuing care programs objectives are subordinated to acute care program objectives, they will suffer. This is a view I have even heard expressed in the local health community.
The Minister and I obviously disagree about this; he has decided to proceed in a different direction, be that as it may. I will say, though, that this will be an issue that will remain a sensitive one, as we gain an aging population. I expect that groups, such as injured workers and senior citizens' groups, may have something to say about this, if not now, in years to come.
We, of course, laud the Minister's efforts to achieve greater efficiency and greater economy in the delivery of such programs. For that reason we, in our government, promoted common heating, common nutritional and common mechanical services for the two facilities. There may be other programs that can be run in common to the financial advantage of the taxpayer; however, I am concerned about the merging of what I believe are two incompatible programs.
Likewise, I am concerned that people who have an intense interest in this program - injured workers and the seniors community - may not be represented on the board. They will be represented in the program at the Thomson Centre, but they may not have representation on the board, even with the two additional members.
These concerns, however, are minor ones compared with the biggest concern of mine, which is that the Minister has in the back of his mind, or as his long-term plan, to have this board responsible for delivering community health services throughout the Yukon. During the estimates, he indicated that, rather than going in the direction provided for in the Health Act for regional-based or community-based health and social services boards, he was looking, instead, at the possibility of community health programs being delivered by one territorial board because the Yukon is far less populated than are some of the regions covered by health districts in other provinces.
This has been the case, most notably in Saskatchewan, where the health program has gone through a major restructuring and boards have been elected that supervise the delivery of health services in all of the rural areas of that province.
The Minister is quite right about population and the size of the health program here; nevertheless, the message that our government heard very strongly and clearly during the consultation on the Health Act was that local communities - First Nation or non-First Nation communities and both of the cultural communities in many of our settlements - wanted to have a strong and powerful voice over the administration of the Health and Social Services programs in their areas. They wanted to be able to set priorities and, essentially, take the same kind of powers that school councils now have, and even to have the option of enjoying the powers that school boards may one day have in the territory.
That may be a debate for the future, but the Minister has already signaled the direction in which he wishes to move, and he has indicated that the hospital board may be the community group that will supervise the provision of this community health program. My problem is that - while I think the board is admirably structured for the delivery of a hospital program, and while I have doubts about the adequacy of its structure, in terms of the delivery of a continuing care program - I have grave and serious doubts about the board, as it is presently structured, or even as it is structured under this bill, being adequate to the task of sensitively and responsibly delivering community health services.
I make that point today, and I will make it again later. We have not had a full debate yet, and we will probably not have occasion to do so until the Minister brings his proposal before the House in its fully developed form. I would only like to signal to him my intention to have a vigorous and healthy - if I can use that word - debate at the time on the subject.
I am pleased to see that one of the most progressive measures contained in the Hospital Act, as it was originally passed, has been maintained and not deleted, as the Minister might have done, and that is the provision for gender parity. I am told by women's groups that this was the first hospital board anywhere in the country that provided for gender parity on the board, given the sensitivity around women's health issues, and especially the extremely controversial questions around therapeutic abortions and other health care issues for women. I am glad we did that; I am glad we were supported on both sides of the House for doing that, and I am glad that has been maintained. I will look forward to the debate in Committee.
Speaker: If the Minister of Health and Social Services now speaks, he will close debate. Does any other Member wish to be heard?
Hon. Mr. Phelps: I would like to respond briefly to a couple of issues. One of the reasons for the addition of the two members is to try to ensure that one will be a person who is keenly interested in - if not actually one - First Nations elders. The other would be someone keenly interested in the issue of continuing care, et cetera, from the public at large.
Regarding the issue of the hospital board taking on these responsibilities as opposed to having equivalent boards in each of the communities, one of the things that we would certainly look at is a model based more on Yukon College, where there are advisory bodies in each community, which in turn advise the central board. That is something that we would certainly look at. We would also look at other options as the issues become clear.
The other point I would like to make briefly is that the hospital is part of a continuum of health care, just as the continuing care facilities are part of continuing care for seniors. I think, and would expect, that the hospital, by virtue of the amendments being proposed here today, would be well placed to start looking at a broader continuum of services to the public at large, such as a healing centre in Whitehorse and more home care of even acute-care patients, and that sort of thing, which is ongoing in the provinces.
While there are things to be ironed out, and certainly our blueprint is not finalized by any means, I think that this enabling legislation will at least allow us to move ahead with some very important steps.
Motion for second reading of Bill No. 7 agreed to
Bill No. 19: Second Reading
Clerk: Second reading, Bill No. 19, standing in the name of the Hon. Mr. Phillips.
Hon. Mr. Phillips: I move that Bill No. 19, entitled Enduring Power of Attorney Act, be now read a second time.
Speaker: It has been moved by the Hon. Minister of Justice that Bill No. 19, entitled Enduring Power of Attorney Act, be now read a second time.
Hon. Mr. Phillips: This act will address the immediate requirements of individuals who want the ability to assign future management of their personal and financial matters to a trusted person, should the need arise.
An enduring power of attorney provides for the dignified transfer of administration of a person's estate when that person becomes mentally or physically incapacitated and is unable to handle his or her affairs.
The person being given the enduring power of attorney can also make decisions for the donor in matters such as medical treatment. This bill includes consequential amendments to the Health Act and the Mental Health Act to allow the designated person to make these medical decisions for the incapacitated donor.
It is important to note that the decision to designate an enduring power of attorney can only be made on a voluntary basis by a mentally capable adult who wishes to assign his responsibility. The public administrator for the territory has received many requests from Yukoners interested in designating an enduring power of attorney. Members of the local legal community have also expressed the need for such legislation in the Yukon.
This act has been substantially modeled upon existing Alberta legislation and modified to suit the Yukon circumstances. Every jurisdiction in Canada has an enduring power of attorney act, except the Northwest Territories and New Brunswick.
The following organizations were consulted on this legislation: the wills, trusts and estates subsection of the Canadian Bar Association; the joint YTG/Yukon Medical Association management committee; the Second Opinion Society; the Yukon Association for Community Living; the Yukon Council on Aging; the Yukon Human Rights Commission and all Yukon First Nations and the Council for Yukon Indians.
During these consultations, strong support was received for the legislation. Once it is passed, the public administrator's office will prepare a brochure to provide the public with the information about the new act. This brochure will be widely distributed throughout the Yukon.
In conclusion, Bill No. 19 is part of an overall thrust by the government to align the Yukon's legislative regime governing estates and personal planning with other jurisdictions in Canada and to meet the needs of Yukoners. The Enduring Power of Attorney Act is the first step in this initiative.
Ms. Commodore: I asked the Minister, prior to this bill being tabled, if he had contacted the Human Rights Commission. He did not mention it when he just spoke. The Minister provided a list of the individuals with whom he consulted about the proposed legislation. He did not say what the response was. I think he said that there was general support for the bill, but he did not mention a response from the Human Rights Commission and I would like the Minister to respond to that.
I have a copy of a letter sent to the Minister from Shirley Adamson from the Ta'an Kwach'an Council about the proposed legislation. It was dated April 20. She had some concerns about the act and she stated some of them.
One of the concerns was about the proposed conflict between this act and the land claims and self-government agreements. Some First Nation groups are concerned about whether or not those acts are complied with in any other acts that come before this House.
I am going to be introducing an amendment to this bill that would provide for that concern. I will be using a section of the Health Act that provides for that concern expressed by First Nations. It is in section 47 of the Health Act, which makes provision for any kind of conflict. I will be introducing an amendment when we come to the appropriate section of the bill. I will give the Minister a copy of the amendment.
I cannot see a problem with the amendment and I am surprised that it is not in the act. I am not sure how it might have been missed.
If the Minister could respond to that concern I would appreciate it. I would like to have a copy of the reply that was sent to the Ta'an Kwach'an Council, if the Minister would table it in the House.
I am responding to their concerns here, and would like the Minister to consider an amendment to meet their request.
Speaker: If the Minister now speaks he will close debate. Does any other Member wish to be heard?
Hon. Mr. Phillips: I received a letter from the Human Rights Commission saying that it has no problems with the bill. I will table that letter and give the Member a copy of it. I will also give the Member a copy of the letter that I sent to the Ta'an Kwach'an.
My understanding from our legal people is that the concern the Member is expressing is already covered. I think that it is explained in the letter I sent to them; if it is not, I will certainly have a look at the Member's suggestion. We can possibly include it if it is not covered. This is one of the responsibilities that First Nations could accept when they take over some of the initiatives from Justice.
I will get back to the Member on that, and bring it back to the House.
Motion on second reading of Bill No. 19 agreed to
Bill No. 93: Second Reading
Clerk: Second reading, Bill No. 93, standing in the name of the Hon. Mr. Phillips.
Hon. Mr. Phillips: I move that Bill No. 93, entitled An Act to Amend the Maintenance and Custody Orders Enforcement Act, be now read a second time.
Speaker: It has been moved by the Hon. Minister of Justice that Bill No. 93, entitled An Act to Amend the Maintenance and Custody Orders Enforcement Act, be now read a second time.
Hon. Mr. Phillips: We have already dealt with the first step in the administrative sanctions in our program in Bill No. 64, An Act to Amend the Motor Vehicles Act, dealing with motor vehicles fines.
Administrative sanctions or restrictions of specified privileges can be imposed when an individual has defaulted on a fine or debt owed. The sanctions put into place in Bill No. 64 include the suspension or revocation of operators' licences and the blocking or withholding of vehicle registrations.
Bill No. 93, before you now, would expand the application under the administration sanctions outlined in Bill No. 64 to include outstanding maintenance and custody payments. Bill No. 93 provides the director of maintenance and custody enforcement with an additional mechanism to enforce the maintenance order against a respondent who is in arrears. The intention of these measures is to apply administrative sanctions to those respondents who are currently not making any maintenance payments. These measures will be used as a last resort in encouraging a respondent to make arrangements to deal with their arrears.
Under this bill, the director can instruct the registrar of motor vehicles to suspend or cancel various operators' licences or permits issued to the defaulting respondent. The director can also ask the registrar not to issue or renew various operators' licences or permits to the defaulting respondent.
What we are proposing in Bill No. 93 recognizes special circumstances where a respondent in arrears requires a licence for employment purposes. When requesting that administrative sanctions be applied, the director can ask that a conditional operator's licence be issued, with restrictions on the hours and places of operation. This bill also includes some consequential amendments to the Motor Vehicles Act to ensure that there are consistent rules about registering vehicles and getting and keeping licences.
Proposing administrative sanctions for default of maintenance payments is an approach rapidly gaining acceptance in other jurisdictions across Canada. For example, in December, 1994, Alberta began implementing administrative sanctions similar to what we are proposing in this bill, and it is reporting a good response to these measures.
In conclusion, I believe this package of amendments will have a positive effect and result in a greater commitment by parents to live up to their maintenance obligations and responsibilities to their children. To me, this intention is best expressed by the kids-come-first theme we are using to identify our maintenance support program to the public.
Ms. Commodore: The amendment to the act that the Member introduced is, of course, something that we have discussed in the past. I think that his department had a lot of time to look at the alternatives to the amendments that it is going to make to the Motor Vehicle Act.
I am pleased that this act is being introduced. I think it is very necessary. It is something that will certainly meet the needs of a lot of mothers and children who are having problems right now. We will not have a problem with this act. It is a good act and we will be supporting it.
Mr. Penikett: I want to say a few words about this bill, because it comes as a result of long discussions in this Chamber and elsewhere about this problem. I am pleased that my party has had a role in proposing amendments of this kind.
It has been said before, and it is worth repeating, that in percentage terms the Government of the Yukon has a pretty good record in terms of assisting in the collection of support payments from absent male parents. However, it is also true that there are many single parents, usually women, in the Yukon who do not have regular support from their ex-spouses. In my constituency in Hillcrest, Granger and Lobird Trailer Court, I can think of women who are the sole support of young children, who are wage earners, contribute to the economy, but also have to bear the double burden of caring, by themselves, for one or two, or in some cases more, children. It is an extremely difficult life for them to lead. They not only have to provide a roof for the family and food and clothes for the children, but they also have to function as an emotional service station for them, and have very little respite from this life of endless work.
I think the kind of administrative sanction that is being discussed here - the suspension of vehicle licences and vehicle registration - is a good device. It is possible, perhaps, to live and work in the Yukon without a vehicle, but it is extremely difficult. Distances are great here. The climate is cold. Even in this town, there will be few people who can walk to work every day of the year.
As someone said to me, this is a sanction that hits many men right where they hurt - their favourite toy, which is their car or truck. The removal of the ability to legally operate it will be a hard blow. It is an important issue because, even though there are people around, even in this territory, who talk about fathers' rights and complain about lack of access to their non-custodial children, in talking about a balancing of rights and responsibilities, we have to have a clear recognition in law of the obligation of male parents to their children.
I know that the fathers' rights movement has grown in the last two years. When I was in Alaska once, there was a committee presentation. A man present at the hearing was complaining about the fact that it was unfair to him to have to pay support for the children of his first and second marriage, because he also had to pay support for the children of his third and fourth marriage. There were, no doubt, women in the audience who would have preferred a surgical remedy to his particular problem.
It is my view that to be a single parent is a very hard lot. In fact, it is almost true that, by definition, single parents are poor. It is also true that we need to foster, in law, the notion that each child has two biological parents and each child is entitled in law to the active support of both of those parents. Even if there is some irreconcilable difference between partners in a relationship or marriage, such that they are separated or divorced - a situation that is usually difficult and hard and sometimes permanently damaging for children - we should at least make sure that the financial obligations of both parents and, in particular, the absent parent, who is usually a male, are met and that we, in this Legislature and as a government, put our full support behind the parent who remains to look after the children.
In the passage of this law, we should indicate our absolute commitment to the idea that there is a moral - as well as a legal - obligation on the part of fathers to support their children.
Ms. Moorcroft: I am pleased to speak in support of An Act to Amend the Maintenance and Custody Orders Enforcement Act. I believe it is a real social tragedy that marital breakdown often results in forced poverty for children. The children do not deserve it, and it is not right that that happens. Parents have obligations to support their families.
In the Yukon, it is a fact that almost 40 percent of court orders for family support require enforcement. Only 62 percent of fathers pay voluntarily, even after a court order has been made. The parent who becomes the full-time care giver for the children when a family separates, often has the full burden of child raising - taking children to school and sports activities, buying clothes for them and feeding them. It is a real hardship for them not to receive the family support payments. As a result, families have also been forced to turn to social assistance for help.
In my riding, I have heard from women and children who are suffering financially because they do not receive the support payments they need. I am glad to see that the Minister came forward with a bill. We had made the suggestion to him that there should be an ability to suspend, or cancel, licences or permits where a parent is defaulting on their maintenance payments.
During the budget debate on maintenance payments in Committee of the Whole, the Minister received a letter about some concerns with the maintenance enforcement program from a constituent of the Member for Whitehorse Centre. This parent referred to the maintenance enforcement courts as a kangaroo court. I was wondering if the Minister has attended maintenance enforcement court, as he was challenged to do in that letter, and whether or not he has responded to the concerns that that parent - who has also been in to talk to me - has raised?
I hope this bill will help, and I would like to thank the Minister for bringing in the act so that we can encourage more parents to pay their family support.
Mr. Cable: I am supportive of the bill. I do have a couple of technical questions that maybe the Minister can get back to us on in Committee of the Whole.
I am wondering how section 14 will operate if the motor vehicle owner is avoiding service. That is the first point.
The second point is with regard to section 64(2). I would like to find out the Minister's opinion of how service of the order of the registrar is effected on the vehicle owner.
These are just technical questions, but I would like to get answers to them.
Speaker: If the Minister now speaks he will close debate. Does any other Member wish to be heard?
Hon. Mr. Phillips: I am pleased to see that Members on the side opposite are going to support the bill that is before us. Personally, I think it is one of the more important bills that we have before us in this session. I think it does deal with a chronic problem.
We have to remember that the majority of individuals who have to make maintenance payments do so on a regular basis, some not as regular as others, but they do make payments. This particular bill is to deal with those individuals who have tried everything else in an effort to recover their maintenance payments for their children, but have been unsuccessful in doing so. This gives the government one more tool to use, which is more effective than most; that is, denying access to an individual's motor vehicle or renewal of a driver's licence if they refuse to pay.
Again, I thank the Members for their support of the bill. I will get back to the Member for Riverside with answers to those technical questions. I do have a document that I will be tabling during the debate on the bill in Committee of the Whole. This document outlines the policy about how the bill will be enacted and the various processes and steps that will be taken before the actual sanction is put on the motor vehicle, the licence or registration, together with the options that the individual may have once there is a flag put on their motor vehicle registration. I will bring this information back when we are discussing the bill in Committee of the Whole. In fact, I will probably pass the information on to the individual critics prior to that time so they can review it, but it is pretty straightforward and explains how the system will work.
Motion for second reading of Bill No. 93 agreed to
Bill No. 80: Second Reading
Clerk: Second reading, Bill No. 80, standing in the name of the Hon. Mr. Phillips.
Hon. Mr. Phillips: I move that Bill No. 80, An Act to Amend the Public Utilities Act, be now read a second time.
Speaker: It has been moved by the Hon. Minister of Justice that Bill No. 80, entitled An Act to Amend the Public Utilities Act, be now read a second time.
Hon. Mr. Phillips: The need for this amendment arises out of the recommendations made by the Yukon Utilities Board during the 1992 capital hearing. The board suggested that there be steps taken by the government to allow non-utility generators to sell power to industrial customers or to the franchise utilities.
Perhaps I should take a moment at this time to explain, for the benefit of all Members what the term "non-utility generator" or "NUG" means. NUGs are unregulated, privately owned companies that produce electricity for sale on a commercial basis. In some jurisdictions, they are referred to as independent power producers, or IPPs. Members of the Legislature remember that our government introduced this non-utility generation strategy in April of last year. That strategy listed five actions that the government would take to fulfill the suggestion of the Yukon Utilities Board that non-utility generators be allowed to operate in the Yukon.
Firstly, we stated that the Yukon Energy Corporation would be directed to review proposals, and negotiate short- or long-term purchase agreements with NUGs who could reduce costs to Yukon ratepayers. I understand from my colleague, the Minister responsible for Yukon Energy Corporation, that this direction has been given, and that the utility has, in fact, received its first preliminary proposal. I am also informed that the use of NUGs as a possible future source of generation will be included in the Yukon Energy Corporation's capital planning exercise in 1996.
Secondly, the government stated that it would ensure that the Yukon Utilities Board would allow the cost of the purchase agreements with the NUGs to be collected by the Yukon Energy Corporation through rates. In other words, we suggest that the NUGs be given equal consideration as other power sources when reviewed by the board.
Thirdly, we stated that we would introduce amendments to the Public Utilities Act in order to allow unregulated, independent generators to produce and sell electricity to franchise utilities or to single industrial customers. That is the amendment we bring to the Legislature today.
Fourth, the strategy stated that the Yukon Energy Corporation would develop technical guidelines to establish production and interconnection standards for non-utility generators. I understand from my colleague, the Minister responsible for Yukon Energy Corporation, that these interconnection guidelines have been completed.
Fifth, the government stated the Yukon Energy Corporation would review its existing pricing policy to ensure that all purchase agreements with independent generators produce a cost benefit to Yukon ratepayers. Once again, I understand this is being done by the Yukon Energy Corporation. This work will be evident in the 1996 capital planning exercise.
In closing, I am pleased to report that much progress has been made on the implementation of non-utility generation policy over the past year. With the passing of this amendment to the Public Utilities Act, we will remove the last obstacle for non-utility generators to negotiate supply agreements with a single industrial customer or with a utility, and for the Utilities Board to do its job as an independent regulatory body in examining these agreements.
Mr. Penikett: According to the information provided to us, this amendment will allow a generator of electricity to sell electricity to either a public utility or another customer without being regulated by the Utilities Board. This clearly changes something in the nature of power generation and utilities regulations in the territory.
When the announcement of the independent power policy - or what others have been pleased to call NUGs - was made in the House some months ago, we were reasonably positive about it, imagining small projects such as those that have been promoted by Era Engineering, and which provide power at the Fraser maintenance camp.
However, the dealings with the government in the last couple of years on attempts to privatize the Yukon Energy Corporation, and the recent discussions about Division Mountain coal, show a less charitable view of what the government may be up to.
It is clear that if this legislation were to allow, without much regulation or without much public oversight, the government to make an arrangement with a private coal-power electrical generator and stiff the taxpayer with guarantees for a project that was built on a very large scale, not only would the public hydro utility be somewhat displaced, but we would have a very different environment here in the Yukon.
The amendments in this bill change the definition of "customer" and of "public utility" somewhat. I gather that, previously, a private utility, such as a mining company, might be able to generate power for itself and sell it to itself. This now provides that a private utility may be able to come along and sell power to a mine at some distance from the energy plant, and to do so without detailed or serious scrutiny by the utility regulators.
Whatever else the government said, it was quite clear when we eventually saw the text of the Boylan contract - the Vancouver lawyer who was given a specific mandate to investigate privatization of Yukon Energy Corporation - and we discovered later that a government Minister had said that there was going to be no privatization, it was quite clear that there had been efforts to accomplish back-door privatization of the public utility. Citizens who looked at this legislation were aware of that and one of them wondered if, after having tried the back-room privatization route, the government was now going to try the back-door privatization route, because if we are not talking about small-scale independent power producers, or non-utility generators, but perhaps very large ones, and if the effect of that - say a Division Mountain coal project - were to essentially diminish the Crown corporation YEC's industrial market, that could have a big impact on residential consumers and other customers here and, indeed, affect the viability of the public utility.
Of course, there is a great concern everywhere about utility monopolies. That concern initially led to public support for things such as Margaret Thatcher's efforts to privatize electrical utilities and water utilities in Britain. The interesting effect of that was that prices went up, employees lost their jobs in the thousands, service deteriorated and a few, very wealthy people became even wealthier, including, as has been noted in Britain, a number of former Cabinet Ministers, who ended up as directors of these private utilities. The experiment there has been a disaster from the point of view of the consumers and the environment and, indeed, the reason why it failed was because they did not really end up with competition. Instead of having a public monopoly, they ended up with a series of regional private monopolies, and the consumer ended up paying the price.
The presumption behind the independent power policy is that one can bring a measure of market reality to a public utility, like the Yukon Energy Corporation, by forcing it to compete with private alternatives in the industrial market. Of course, the public utility here is already managed by a private utility. There are the presumed benefits of private management and, indeed, many people presume that the benefits go largely to the private company.
Whether or not the arguments that are made convincingly by people like Pollution Probe about the breakup of Ontario Hydro, the largest company in the world, apply to a Yukon public utility, which is a small one, is a good question. However, I think it is a good thing to have this option. It is a good thing to explore the possibility of local energy sources, although there seems to be a reasonable fear in the public about backroom deals and a few private individuals essentially gaining great wealth at the taxpayers' expense, as has happened in other parts of the English-speaking world and, I suppose, in the rest of world as well.
As I say, if this had been a proposal to deal with relatively small projects, there would have been less concern. I would like to pass on to the Minister some comments that constituents of mine have made about this bill. One person with considerable expertise in energy matters points out that this amendment gives the mines an option to supply power without going through the Utilities Board - by getting the power through, say, a company owned by Canadian Utilities, Alberta Power or some other one. Under this amendment, a private company that generates electricity can then sell it to the public utility and avoid the scrutiny of the Public Utilities Board. I hope that is not the truth, but this one citizen reading the bill believes that.
All the Utilities Board can do is make sure that it is sold for a reasonable price, whatever that means. If a private company set up a coal-fired generator and sold power to the Yukon Development Corporation, as a private venture, as long as the prices I mentioned were reasonable, according to the Utilities Board, then the private company could go ahead and do that.
There is a fear by another reader of this bill that the amendment might allow private companies to circumvent the provisions of the umbrella final agreement on land claims. Under the UFA, regulatory boards do offer some public scrutiny of major developments. I have not had occasion to do that, but that is something that I might want to check with the Council for Yukon Indians later today.
One thing that is implied is that if a private company in an energy business loses money in the process, it cannot go to the Yukon Development Corporation to subsidize the losses. That may be a good thing, but if something like Division Mountain coal were to come onstream, and if, as we hear, an economic plant would be much larger than is necessary to supply the current power needs in the Yukon and the company were to go to the government for guarantees, as we heard one of the proponents say on the radio some months ago, then we could have a situation of subsidies that did not go through Yukon Energy Corporation or Yukon Development Corporation but were an arrangement between YTG and the private company. There would be a lot of questions about that if that were to occur.
Another reader of this bill asked me why the government did not use this opportunity to add changes that arose from earlier discussions on energy policies, such as an expanded role for the publicly owned Energy Corporation in the possibilities for local alternative energy projects, which are quite interesting to a number of people. Wind has been mentioned. One Member of the House will not be able to discuss that as much as he would because it would affect his own interests.
The wind options are very interesting, as are some of the other alternatives, but as has been pointed out to me, if the government encouraged the building of any surplus capacity in this territory - either hydro capacity or coal capacity, public or private - then the possibility of the economics for small wind-generating operations would evaporate quite quickly.
Another reader has suggested that the government could have mandated the Yukon Energy Corporation to become involved, through the spill, in district heating systems. Others have suggested the replacement of baseboard heaters in homes in Whitehorse, which could be financed at no cost to the taxpayer, on a user-pay basis, and using payments through utility bills to cover the costs of capital replacements. That is probably one of the biggest cases of wasted energy in this city - I do not know how many electric baseboard heaters there are, but there is a huge number - they use a lot of power and they are extremely inefficient. Baseboard heaters have been installed in Yukon Housing units in recent years, which is a shame. I will freely admit that the installations took place when the NDP were in government, but before we could do anything about it.
There are interesting options in terms of utilizing waste heat and energy conservation. The utilities have not been very interested in these options because they had surplus power, but they are looked at as a realistic alternative everywhere else in the world to new developments.
The same citizen has asked the question about this bill and whether or not there is another hidden agenda of the government on energy questions. I hope to be able to ask questions in Committee of the Whole to find out exactly what the government has in mind. Is the bill intended - as with other things - to provide a quick and dirty legislative foundation for the Division Mountain coal project or are we talking about something a bit more benign? These are questions we hope to pursue in Committee of the Whole.
Mr. Cable: I just have a few questions and an observation. I believe the Minister referred to the first NUG proposal being on the table - he is shaking his head. It would be useful to hear what that proposal is when he rises to finish debate.
I notice that the act - this information will be useful for Committee - appears to have cut out the exemption of gas utilities from the section defining a public utility. If the Minister, in Committee, could indicate why that was so, I would appreciate that.
There appears to be an attempt to deal with a situation where the NUG displaces the public utility. I think that is the import of section 3(a)(ii), and perhaps the Minister could indicate if I am reading that section correctly, insofar as his intention is concerned. I am thinking of a situation where someone is hooked up to the grid, such as Anvil Range, and someone comes along and sells it power from an NUG, which shuts down that consumption and puts the whole system into disarray.
Section a.1 indicates that the power surplus to the customer's needs is not subject to review. I have the same reservations as did the previous speaker. That leads to the perception of sweetheart deals between the NUG and the customer, assumedly at the expense of the public utility and the ratepayers.
I would like to hear why the Minister feels that that surplus should not be subject to the scrutiny of the Public Utilities Board. We should have some assessment of the costs of that power generation and the risks involved to determine if the price being charged to the utility is fair and if there is a sweetheart deal going on at the other end of the equation.
It would also be useful to hear how many other jurisdictions handle NUGs in the same fashion as suggested by the Minister in his amending bill.
Speaker: If the Minister of Justice now speaks, he will close debate. Does any other Member wish to be heard?
Hon. Mr. Phillips: I will attempt to bring the answers of those questions back to the Members when we go into Committee of the Whole.
Motion for second reading of Bill No. 80 agreed to
Hon. Mr. Phillips: 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 Government House Leader that the Speaker do now leave the Chair and the House resolve into Committee of the Whole.
Motion agreed to
Speaker leaves the Chair
COMMITTEE OF THE WHOLE
Chair: I will now call Committee of the Whole to order. Is it the wish of the Members to take a brief recess?
Some Hon. Members: Agreed.
Chair: We will take a brief recess.
Chair: I will now call Committee of the Whole to order.
Bill No. 28 - An Act to Amend the Employment Standards Act - continued
Chair: We are dealing with Bill. No. 28, entitled An Act to Amend the Employment Standards Act. Is there any further general debate?
Hon. Mr. Phillips: On Thursday, we were asked by some of the Members opposite about two particular sections in the act. One was section 50. That is the section where it states that one week's wages can be deducted from the employee if the employee quits without notice.
There was an amendment proposed by the MLA for Whitehorse Centre. Unfortunately, after reading the amendment, it is clear that what is really happening is that the side opposite just wants to repeal that section. I know they never supported that section, and I can understand that. However, we are unable to support the amendment to that section.
The Member for Riverside asked about that particular section as well. I sent him a letter this morning that dealt with that section. He asked how many complaints we have had under that section, because it has been in place for 10 years.
We have had 15 complaints filed with the labour services branch relating to money deducted under this section. That compares with a total of 2,396 complaints investigated during that time frame.
In 1994-95, there were 214 complaints filed with the labour services branch, and six of those were concerning section 50. There were also 1,784 telephone and personal inquiries, and 263 were about all kinds of situations, requiring notice of termination under the act.
The Member for Riverside, as well as the Member for Whitehorse Centre, spoke of someone quitting because of sexual harassment, and a search of section 50 shows that to date no employees have stated that they were forced to terminate their employment without giving notice due to sexual harassment. Out of 15 cases in 10 years there has not been one that has arisen due to that.
We feel that section 50 does create a balance between the employer's obligation to give notice to employees and the employee's obligation to do likewise to the employer. For example, an employer who terminates an employee with four years' employment without notice will have to pay an additional four weeks' pay to that employee. If the same employee quits without giving the maximum prior notice, they might be expected to pay one week's wages. We feel that that is fair and reasonable.
The other area of concern was notice of overtime. The Member for Riverside suggested that we pull a section out of the collective agreement with the Government of the Yukon that addresses notice of overtime. I think it goes some way to possibly soften the wording in that section and provide for the employee and the employer to work out a reasonable arrangement when it comes to overtime.
I will pass the proposed amendment to the bill to Members. Then, when we get down to the bill, if the Members wish, we can discuss the matter further.
Ms. Commodore: It is safe to assume, then, that the Minister does not support the principle of a day's pay for a day's work - is that the case?
Hon. Mr. Phillips: I support that the employer and the employee treat each other fairly. In this particular case, we are saying that if an employee works for four years, the employee should receive four weeks' severance pay when they leave their employment. However, if an employee quits without just cause - there are all kinds of reasons for just cause - leaving the employer holding the bag, and creates problems, without just cause, the government feels that the employer should be compensated, as well. In this case, the government thinks it is a fair and reasonable option to have. As I said, the concern that the Member raised about sexual harassment has not ever come up since that particular section of the bill was put in place.
Ms. Commodore: Just because a complaint has not been made does not mean that it has never happened. It is as simple as that. We believe that there has to be some provision. I have not had a chance to look at the amendment that the Minister just provided to us. We gave the Minister the whole weekend to review our amendment, and now that we are discussing the bill in Committee of the Whole, the Minister has provided us with his own amendment. I do not know if it meets the needs that we had registered.
It may or it may not. Perhaps the Minister could explain to us the difference between the amendment I provided him with a copy of on Friday and the amendment that he is going to introduce today. Does it weaken our proposed amendment? I would like to know that.
Hon. Mr. Phillips: The amendment the Member gave me on Friday requires 24-hours' notice of overtime. We feel that is unreasonable. In this particular amendment, an employer has to give adequate notice to an employee to work overtime, and the employee has to make all efforts to work the overtime. If the employee cannot work the overtime, he or she has to provide to the employer, in writing, the reasons why the overtime cannot be worked.
We feel that, nine times out of 10, people in these types of situation want to work overtime, will work overtime, will make arrangements to work overtime, and if they cannot work overtime because of some family needs, we feel their employer will see that, recognize the value of the employee and make alternate arrangements for the overtime that has to be put in. We feel that it is a reasonable alternative to what was in the existing clause and the amendment put forward by the Opposition.
Ms. Commodore: The Minister has not convinced me that his amendments are any better than ours, and they certainly do not improve on it. Almost the whole act is a watered-down version of the one that was passed in this House. I really object to having to deal with it again, when it was not necessary. I do not want to have to stand here and argue with the Minister regarding these two sections, because we have already done that. Unfortunately we are here and we have to deal with it.
In the last section of the Minister's act, it states that an employee may refuse to work overtime for just cause but is required to state the refusal and the cause for refusing to the employer in writing. Who decides whether or not there is just cause?
Hon. Mr. Phillips: It is the director of employment standards.
The wording is very similar to the wording used in the YTG collective agreement.
Ms. Commodore: The fact still remains that if a person refuses to work overtime, they have to state, in writing, their reason for that. By that time, the worker could be fired. They are having to go through the process of dealing with it through the proper channels. By that time, it could be too late. I am concerned.
Whether or not it says so in another act, we are still concerned about it.
Hon. Mr. Phillips: I really do not know what to tell the Member. We feel that the provision that they had in their act - the 24-hours' notice of overtime - is unreasonable. It is just not workable in the work world. It does not happen that way. Overtime does not happen, in most cases, with 24-hours' notice; it usually happens in cases where the employer has something come up where they need employees to stay a few hours longer or work some extra shifts. Most of the time, they reach an agreement on that.
As I say, in 10 years, we have had 15 instances where employees have complained about this out of well over 2,400 complaints. It is not a burning issue out there. It is a reasonable request.
Ms. Commodore: The Minister is responsible for the status of women, so he should have some knowledge about some of the concerns that women have, especially single parents and other individuals. I have a hard time accepting his explanation, because if he takes his job as Minister responsible for the Women's Directorate seriously, he would have some idea about some of the concerns that women have. This was one of the most important things that we have heard with regard to single women at work. Just because the department has only received 15 complaints in the last 10 years does not mean that it does not happen.
There are all kinds of things that happen out in the work force that are done illegally and are not reported to the department. I really have a problem with this.
Mr. McDonald: I would like to get my comments on the record on both sections that have just been discussed - the issue of a week worked is a week paid and the issue about the mandatory application of overtime.
I recall that when the Minister was in Opposition and responded to the Employment Standards Act, he indicated that while he personally felt that a week worked is a week paid, his objections to the Employment Standards Act at the time were all about balancing off recommendations before the Yukon Council on the Economy and the Environment. I agreed with his statement at that time. It was one area where there was agreement between us.
I am surprised that the Minister has now taken this approach. I do not know of employers - certainly no employers of my acquaintenance - who deduct such an amount, because they believe it to be wrong. I also believe that deducting pay in the absence of notice given for leaving the employment of an employer would, for most people, be considered ethically wrong. The idea that this is in legislation and that it would permit those employers who want to be vindictive with an employee on their way out of a term of employment is equally wrong. I am surprised that this Minister is making such a proposition at this time.
What normally happens is that if a person does not provide notice or deals unreasonably in any way with an employer, that person's reputation is affected, but there are no monetary sanctions. After the week's worth of work is complete, it is expected that the person be paid.
I know of a couple of people, not of my acquaintance, who have used this clause against people who could ill afford to lose a week's pay.
There are a whole variety of different reasons why a person would want to leave an employment relationship, which are not easily codified, but are entirely justifiable by anyone's standards. Those people leaving often do not work in a union environment, but work in a non-regulated environment in the private sector. I think it is wrong to make a rule such as this. I am surprised at the ethical standards of this government in promoting it.
With respect to the issue of the mandatory application of overtime, the problem we have is that a lot needs to be defined that is not defined. When one works in a union environment, what is justifiable and reasonable is either defined through collective agreements or determining who is right and who is wrong is left up to a grievance process, to be determined through an independent arbiter. To provide this kind of language in this act, in the unregulated work environment in the private sector, will leave the employee at a disadvantage, in my view.
A lot of people love to work overtime - there is no question about that. The more work they can get, the more they will take. Some people have great difficulty working overtime because of other commitments they make - to their children, for example - or because of other restrictions in their lives that are not part of their work life.
It is a provision that makes it seem as if a person who is in someone's employ is, in fact, a vassal of that employer, and that the employee's whole life should revolve around their employer's needs. It is not something that we have come to expect in modern-day labour legislation. Employers must acknowledge that they are employing human beings, and those human beings have a variety of needs that must be respected. It means that, in the management of personnel, shift schedules and that sort of thing, employers need to take greater care about how employees' schedules are managed.
I recognize that there are industries that face difficulties with this kind of situation and I am more than happy, as one person, to listen to those industries' concerns. I have heard concerns expressed by the wilderness guiding association about mandatory overtime and the reality that it is difficult for them to bring in other workers to replace someone who does not intend to work overtime. If there are exceptions such as that, those exceptions should be addressed in some way. I think that a rule that applies to all workers and all situations like this is inappropriate.
If the Minister wants to respond to that he may and I will give him the opportunity, but I am particularly perturbed by the government's insistence that a week's work is not a week paid.
I think that if the Minister were to go to any coffee shop in this territory and announce that this is what the government is intending to do, I would say that the government would be pretty well condemned for this provision. People understand intuitively that when they make an investment of their time, on the agreement that they be paid for that investment, nothing should violate their right to receive their pay. I do not care where the Minister goes - unless he goes to an employers council - he will find that people will not like this provision, and they will condemn the government for this position. I hope the government bears that in mind when it finally pushes this through the Legislature.
Hon. Mr. Phillips: I just have a couple of brief comments. I do not want to prolong this debate; we have had it time and time again in here. Section 50 has been used in the past, and I am sure it will be used in the future, as a very last resort that employers will use. I gave the example last week about eight employees who quite en masse, and without any notice, because the business had changed hands. After some problems, their week's wages were deducted from their pay. It created enormous problems for this relatively medium-sized business, when the eight employees quit. They quit because there was a new owner. They did not even know if the new owner would change the rules of the workplace, or whether things would be better or worse. They never even gave him a chance.
There are other instances where employees quit, and it affects other employees in the business. They end up with the extra workload. They end up with extra jobs to do, and maybe they cannot do the job. Maybe the employer cannot deliver service to clients, because there has not been adequate notice given. Most of the time, arrangements are made between employers and employees about adequate notice. Thousands and thousands of people in the Yukon quit their jobs every year. As I said, there have not been that many complaints in this area. As well, I think that there is some responsibility on the part of the employee, as well as the employer.
When someone takes a job and works for somebody and provides value to that company, there is some responsibility on the part of that person when they quit to give adequate notice to their employer, because their employer, for some period of time, has provided a reasonable employment for them and a fairly secure income. I think there is a responsibility for the employee to give adequate notice. I do not think a week is a lot of time. We all know how fast the weeks have passed in here, and so I think it would be reasonable. I think in this particular case we are probably going to agree to disagree. I do not know if there could be much more value in debating the issue further. I think we have heard everyone's view several times in this House.
Mr. McDonald: I thought I heard the Minister's view a couple of years ago and I thought I heard the Minister say that he agreed, when he was an MLA, that a week's work is a week's pay. So, that is the reason why the issue is being raised again, because it turns out that I did not understand the Member's position at all, or the Member said something he did not mean two years ago. Why he was not expressing his honest feelings about this position a couple of years ago, I do not know, but I would point out to the Member that I realize that we are coming close to the end of the session and we might as well just get it wrapped up. We all know what we are going to say, and how we are going to vote. However, I know there is going to come a time in the not-too-distant future when I am going to be sitting in my office or visiting someone and finding out that they have just been screwed out of a week's pay. The person will be making $400 or $500 a month, working full time, which is not uncommon in the private sector, and they are not going to have sufficient funds to pay the bills, because they live hand to mouth on a full-time wage. I am going to be talking to them about going to social assistance, which is something they wanted to avoid. A lot of the people that we are talking about do not work in a union environment and do not make $50,000 or $60,000, up to $80,000 a year. A lot of my constituents are people who make $500, $600 or $700 a month, and they work full time in order to achieve that.
The idea that they are going to lose a quarter of a month's salary because in their view they are tired of being harassed or they just simply have been told that they have to work overtime once too often or simply cannot make their lives work in that kind of environment, and then quit in frustration - when that person looks for some help, I am not going to be the one to say that it was near the end of the session and sunny outside, so I decided that it really was not worth my while to give it a good shot in the Legislature, even though I thought that the Minister, surprisingly, was going to push this kind of a provision through. I do not want to leave it like that, because I do not believe that this is an appropriate provision.
One week does not sound like much when one is going through the Legislature, in terms of time, but it can be a fairly large portion of one's income. It is something that some people can ill afford to lose.
There are provisions in law that allow people in the private sector to fire someone for virtually any reason at all - right on the spot. Who comes and complains? In situations like that, I would venture to guess - the Minister is shaking his head; he will have his chance to respond, and I would like to hear it, because I have some familiarity with the private sector, too - that in a lot of situations these kinds of complaints do not come to the department, because people do not register, for statistical purposes, their complaints with the Department of Justice. Usually, it is an ugly moment in their lives - on all sides. People do not like it; it is unseemly and they want to get away from it. They do not want to drag it out and they certainly do not want to go through a confrontational process with their employer, the government or with anyone else. They want to put it behind them. It is what a lot of people do.
It is quite common for managers in the private sector to deal with their employees if they do not think, in their opinion, that the employee is working out. We say that that is the employer's right, but the impact of that right is that they can fire someone on the spot - no notice, they say "You are fired." That person cannot immediately, if they are making $600 or $800 a month, go out and find a job that immediately begins paying.
There is always a hiccup there, where the person makes no income. It is not a matter of saying, "We will put off the purchase of the Jacuzzi until next month." Rather, the electrical and phone bills need to be paid. I had a person in my office a few weeks ago who could barely make ends meet - and that is, basically, on a macaroni-and-cheese diet. That is the reality.
So, this is an important principle, and it is a concern that we have to think very carefully about. We cannot assume that we are all highly paid and work in some kind of union environment, which is protective and nurturing or, at least, supportive - that there is an advocate right there, on the spot. The reality in the private sector is much different, and that has to be acknowledged. When we seem to create an imbalance in the work environment, we have to do that only with the greatest care.
In this particular case, given that we are not putting restrictions or limitations on anyone's arbitrary firing of employees who do not work out, in the opinion of the manager, but we are going to sock it to the employee in this situation - I think that is an imbalance, which is inappropriate.
I would just point out to the Minister - I think the Minister knows this - I would walk down the street with him one day, if he wants, and we will just pick someone at random. We will say, "Do you believe a week worked should be a week paid?" I guarantee that - and the Minister knows this - the person would be in agreement with that proposition. To make it worse by talking about more weeks for more time served, the Minister is out of touch if he thinks that this is a popular provision.
I do not think that anyone can reasonably suggest that, somehow in law, we are going to create a perfect employment environment and it is going to be perfectly balanced and everyone is going to behave themselves as they should. I think it is a very brutal thing to do, to compromise the principle of a week worked, a week paid. That is the reason the previous Cabinet did not accept the proposition, the one exception among the recommendations of the Yukon Council on the Economy and the Environment.
I understood the Minister to say that his only concern was whether or not the recommendations were balanced, not whether or not he supported the principle of a week worked is a week paid, because he apparently did at the time.
It is a serious issue, and we should do it only with the greatest of care. If it means that we have to make sure that our analysis is thorough, then so be it.
Mr. Cable: I made a suggestion to the Minister last week that we look at a summary proceeding, whereby the money could be returned to the employee if it was found that there was a spurious withholding. He has investigated with his staff and advised me that there were a number of problems with that.
If we remove section 50, what we have left in the act for the employer is a prosecution, because of the employee's breach of section 48(b). I have a lot of problems with converting what is essentially an Employment Standard Board proceeding into a prosecution under section 99. I do not know whether or not that is what the Council on the Economy and the Environment was thinking about.
Am I right in my view? Could the Minister and his official indicate that, if we remove section 50, there is nothing left but a prosecution to enforce the wrongful termination of employment by the employee?
Hon. Mr. Phillips: It is my understanding that if we remove section 50 there is nothing at all.
Mr. Cable: I do not think so. Section 48 specifically sets out wording that says the employee shall not terminate employment. If the Minister has the present act in his possession - turn over to the offence section - it says a person who contravenes any provision of this act commits an offence and is liable on summary conviction to a fine not exceeding $1,000. Is it the Minister's position that that section is not operable?
Hon. Mr. Phillips: It is my understanding that if section 50 is not there, there is no recourse for the employer and there is no penalty for the employee to pay. The employer could probably go to court and claim that the individual was unfair when the employee quit, but there is no recourse to allow the employer to recover any funds.
Section 50 is what was recommended by the Yukon Council on the Economy and the Environment and the business community as a balanced trade-off against the other. This is one section where we have considered options suggested by the Member. We feel that it is a fair trade-off and a fair balance from one to the other, and that is why we want to proceed with the section.
Mr. Cable: I do not think the Minister understands where I am coming from. Is section 99 operative, from the state's standpoint, to enforce section 48 of the act? I am not talking about money going back to the employer.
Hon. Mr. Phillips: I suppose that, theoretically, the government could prosecute for that, but what would be the point? If there is no penalty and no recourse it would not serve a lot of purpose, other than the government spending a lot of money to try to prosecute someone.
Mr. Cable: It is for the same reason that one would prosecute under any other section. The point I am making is that there is some sort of redress for the employer, but it is an undesirable, quasi-criminal redress. If the employer is to be given some redress that keeps the parties out of court, such as section 50, there are other means of dealing with the downside to employers who are using the withholding section for spurious purposes. Is the Minister prepared to think a little further along this line, and penalize spurious withholdings, either with costs or penalties accruing to the employee, as a hammer over the employer? I do not mean for the offence section; I mean costs that the board could award to the employee, or a penalty that the board could award to the employee. That would recognize the power that the employer has in the relationship.
Hon. Mr. Phillips: The only thing we can recall is that they may have awarded some costs in some cases, on an appeal on a certificate or something. With respect to section 50, I do not think we have ever gotten to a point where that has been a problem.
Mr. Cable: I think the point that has been made is that there is the potential here for someone who is often in the driver's seat to misuse their power. Sometimes courts penalize people who misuse their power or misuse their access to the courts by assessing them with additional costs.
I wonder if the Minister could think about that. We will not get to section 50 for a little while. I wonder if he could think about whether or not he is prepared to penalize an employer who is found to be spuriously withholding the employee's wages.
Hon. Mr. Phillips: The employer does not withhold the wages. The employer transfers the wages to us, and we investigate it. It is a pretty serious issue when the director is investigating an issue like this. It would not be a wise decision for an employer to do it just for the sake of doing it, perhaps because they are mad at the employee, because the facts will eventually come out. I do not think it is in the best interests of the employer, or for his or her standing in the employment standards office in the future.
If I were an employer, it would not make sense to do this just because I was mad at someone. These kinds of things take time and money - it is not free. It will be done as a last resort, and it has to be a fairly serious issue. There was the case I mentioned of the eight employees who just quit. Those kinds of things happen from time to time, and I think this will be treated fairly seriously.
This has been the law for 10 years, and I do not think we have found that it is a major problem.
Mr. Cable: I am suggesting that there are employers who are vindictive and there are employees who have less than desirable conduct in the work environment, and if the board had power to penalize a vindictive employer -
Some Hon. Member: (Inaudible)
Chair: Order please. Mr. Cable has the floor. Would the Members please allow him to continue with his questioning.
Mr. Cable: As I was saying, there are employers who are vindictive. There is no provision in the act, as I read it, for penalizing vindictive employers. I do not think that that needs a lot of detailed legislative drafting. If the board should find somewhere down the road that somebody was simply being vindictive and withholding pay from somebody who needed their pay, there is a remedy: a Sword of Damocles punishment of having to pay some penalty, or to pay costs, would certainly discourage people from acting arbitrarily.
Hon. Mr. Phillips: I can have a look at it, but my understanding is that we have had only two cases ever go to the board. I will have somebody spending a bunch of time drafting another what-if scenario, but this does not happen very often. I can ask them to have another look at it and see if we can put in a penalty clause for the employer. We are only talking about two cases in 10 years. This is not something that is a major, burning problem.
Mr. Cable: Obviously, the perception is a burning problem in this House. If the Minister were to put in such a section that will not deal with the week's-pay-for-a-week's-work problem, it would certainly deal with the perception of the employee being in a situation in which they have inferior power, and it will act to discourage any employer who gets it into their heads to arbitrarily deduct money. It is not an uncommon way of dealing with recalcitrant people in the courts.
Hon. Mr. Phillips: I know the Member comes from a legal background and likes laws, because it is sort of like job creation and it creates work for lawyers, but I will have the department look at that and see if there is the possibility of putting something in there that will make the Member feel happier about the amendment.
Mr. Cable: I should refer the Minister to section 90, where there is, in some instances, the award of costs. We are not breaking new ground here; we simply want to put in something that will discourage vindictive people.
Mr. Penikett: I would just like to go on record on this subject. Mr. Cable uses the word "perception" of unequal power. I do not think there is any question of perception here. I think the absolute hard, brutal reality is that the power relationship between an employer, in a business of any size, and an employee who does not have a union and may be working close to the minimum wage and may be economically vulnerable because they are a single parent and may not have been working long, is enormous. There is probably no greater gulf in any power relationship in our society than that.
To suggest that there is equal power or some kind of equitable equation between the employer and the employee in this situation is just to talk absolute nonsense. Consider the realities. None of us who has ever worked in the private sector can be ignorant of the fact that, yes, there are bad employees, but there are some awful employers as well. The situation described by my colleague, the Member for McIntyre-Takhini, is not at all unusual. If you had the time and took the trouble, you could probably go to certain work places in this town any day of the week and find employers not brutalizing, but verbally abusing employees, and you may find in that place of work a situation, often with a young woman, who may not have the job skills nor the training - the Minister is laughing; I do not know what he finds funny - who may be working for very little pay, who may have little education, who may have, as is commonly the case, parental responsibilities, perhaps before she was ready for them, and who, in the situation where they have been abused, as my colleague said, or frustrated by working conditions, have just literally reached their breaking point and said that they have had enough. For the employer to then even have the ability to deduct a week's pay, in my view, is absolutely criminal. I do not know of any other jurisdiction in this country that would permit someone who has worked a week to have their pay stolen from them. In my view, it is theft. I do not care if the Tories make it legalized theft; it is still theft, in my view. It is theft by someone who has a position of power over someone who is economically weak and politically powerless. I think it is probably one of the most immoral acts put into law that I have ever seen in this Legislature. I feel that very strongly.
I want to make a comment about the other amendments in regard to compulsory overtime.
In the language of the two amendments - one moved by my colleague, the Member for Whitehorse Centre, and the amendment suggested by the Minister, which is an attempt to close a gap - there is some interesting language that I would call the Minister's attention to and that is wording around the use of the word "emergency".
The Minister's amendment refers to an emergency of an employer. I assume a very common emergency in that case could be in a business where there are shifts, and the person who is supposed to work the afternoon shift does not turn up. Anybody who has worked in such a business has experienced that situation. The emergency referred to in my colleague's amendment seems to refer to the employee's emergency, which is one that is quite common. That is a case where - most of us know people who have been in this situation - someone normally gets off work at 5:00 p.m., and the person has a child in a child care centre that closes at 6:00. The person may be able to stay for a few minutes to cover for someone who may be coming late or may not be coming, but that employee faces a genuine emergency if the child care centre closes at 6:00 and the employee has no one to assume the responsibility of the child or pick the child up and take the child home.
It seems to me that if we are going to close the gap properly, we need to have recognition in the legislation that such emergencies can occur for both the employer and the employee. We need to be able to deal with both situations reasonably.
Hon. Mr. Phillips: My understanding of section 50 is that both Manitoba and Newfoundland have similar provisions in their legislation. I do not share the same view as the Leader of the Official Opposition when it comes to employers. I think that employers, for the most part, are reasonable people and treat their employees fairly.
I do not want to get into this debate; however, the Member touched a nerve. He spoke about treating employees fairly. He spoke about how he is appalled at the mistreatment of employees. I do not think we want to get into that, because that Member has a lot of skeletons in his closet about the way that some senior officials in his government treated some people in the Government of the Yukon. He was aware of it - he was clearly aware of it. It was probably the most appalling treatment of individuals in this government that we have ever seen in the history of the Government of the Yukon.
It is fine to be principled. But if you are principled, you have to act on those principles. He did not do that. As I said, he has touched a bit of a nerve. I have spoken to some of the women and individuals that someone under his direction verbally abused, time and time again, with his knowledge, and he did nothing.
If one wants to stand on principles, then one should stand on principles. I abhor any individual who treats people like that, and I have absolutely no respect for individuals who treat people like that. I have even less respect for individuals who know that that happened, but did nothing about it.
Believe me, I hope that the Member gets up and wants to talk about it. If we went into debate about that, I would enjoy it. I know some of the people who were almost hospitalized as a result of the kind of treatment they received. Ministers - all of those Ministers - were made aware of what was going on. They did not do anything about it. Today, however, they stand up and appear to have a "holier than thou" attitude, saying that they abhor the treatment of employees by the power of the employer.
Fair is fair, and I think that most of the employers in this territory are fair to their employees. There will be abuses; there are abuses. We are all aware of them. There are also employees who abuse the relationship with their employer.
I think that the act we have before us is a vast improvement over the previous act, and that it takes into account the balance of fairness between the employer and the employee.
Mr. Penikett: It is quite incredible, for a Minister of Justice. In response to a concern about minimum wage employees, the Minister bootlegs something - the kindest thing would be to say "hearsay" allegations about third parties - and then claim something that he could not possibly know, in a fundamentally offensive claim, that not only did Ministers know about verbal abuse of employees, but they sanctioned it; this, from a Minister who cut employees' wages without collective bargaining, whose government is notorious in this territory for its attitude toward employees, employees' bargaining rights, employees as employees, even this legislation, which is an improvement over the previous legislation, but not an improvement over the legislation they voted for - which they obviously did not support.
Unfortunately, the Minister's bootlegged allegations have nothing to do with the legislation before us, nor would I say that this legislation has anything to do with reasonable employers or employees. If everyone were reasonable, fair and decent, one would not need employment standards law, nor would we have hundreds of thousands of dollars in claims every year. We would not have an Employment Standards Board.
The legislation we are dealing with deals with a small minority of employers and their employees, who may be unjustly treated - employees in the private sector. We actually extended the bill's coverage to include the government, but one of the very first amendments of the Members opposite was to remove that coverage. Any discussion of government employees is thereby completely out of order. I am surprised the Chair did not point that out.
Perhaps I could just conclude by stating the realities of work for low-income people. They have no job security in this day and age, no income security; they are marginally attached to the economy, have a very tough time paying rent, food bills and for the kids' clothes and, as the result of conservative right-wing politics everywhere in the western world in the last few years, their real incomes have gone down in the last decade, partly because of conscious government policy and partly because of recession.
We are not dealing here with reasonable employers; we are not dealing here with the majority of employers; we are not dealing here with 90 percent of the employers and employees. We are dealing with the people who do not treat their employees fairly. I wish that this government would listen more to the employees, as well as to the employers.
Mr. Harding: I am disappointed that the Minister did not respond to that, given the inflammatory remarks he made previous to the last speaker.
I want to make a couple of points. The Minister talked about nerves being touched; I have certainly had my nerves touched by the Minister's comments today and by his complete lack of understanding about where we are coming from with this position, irrespective of what the Yukon Council on the Economy and the Environment recommended in this particular case.
I believe that this is an issue of principle. I am not prepared to accept that because there has been a check done of the complaints for sexual harassment in the past that that means there is no sexual harassment out there and that there has been no sexual harassment that has forced people in the workplace to leave their jobs. I just do not accept that; I do not buy it. While the Minister may think that that is statistical evidence that is foolproof, I believe that people who are covered under employment standards - low wage, service-sector workers -do face sexual harassment and job pressures in the workplace from a small number of employers - a small percentage - but nonetheless the fact that it is a small percentage in no way undermines or diminishes the impact that that particular employee has had to face. I just do not accept that there is a statistical basis for saying that it does not occur and that, on that justification, we can absolve ourselves of section 50 of the act and the ability of the employer to withhold a week's wages.
I think that is, while it may be statistically correct, it is also statistically convenient for the Minister. I think it does a disservice to the issue of sexual harassment in the workplace, which I think has been raised, for the good of the public, over the last few years. Rather than using statistics that we are not sure about to defnd this provision, we should be doing what we can as legislators to ensure that we do not open doors for this kind of conduct to benefit someone who could well have been an abuser of the employer-employee relationship.
I also want to say to the Minister that he really touches a nerve with me, but it is not with his rhetoric about the employers being good employers for the most part and so on. I do not find that offensive because I know it is true, but we are not talking about employers who fall into that category. This particular act deals with people, as I am sure those who work in the department know, often on an ongoing basis. I know that they get complaints from the same people many times. They are people who are always opposed to the kinds of legislation that governments bring in to further the case of working people, particularly the unorganized. The discussion about fairness about employee and employer is a red herring in this case, when it comes to employment standards.
There is no question that most of the people governed by this act are unorganized workers who do not have unions in areas of their industries to bargain wages and the conditions of work, so that non-union workers have to follow suit in order to be competitive in the wage scale. This particular act pertains to people who usually do not have that bargaining agent within their industry to bring up the terms and conditions of employment, as opposed to a lot of non-union construction firms who often compete with union wages. In a lot of those construction outfits, you will find that the terms and conditions of work are pretty solid, but that is a result, simply, of the gains that have been made at the bargaining table by hammering out fair wages and conditions of employment.
The problem about fairness between an employee and employer and the balance in that relationship, is that it simply does not exist. It does not exist for the employee in low-wage industries. I have seen, even in non-union cases in fairly high wage industries, where the sheer frustration of the employer being able to terminate without just cause is an incredible leverage over an employee. There is no collective agreement that states that the most basic fundamental fair principle, which covers most us in this society, is that you must have just cause to terminate an employee.
In this case, in the Yukon and in many jurisdictions, under the legislation, we do not have just-cause provisions. To say that this provision creates fairness between an employee and an employer is folly, and it is an argument of convenience.
I do not know too many employees, given the experience I have had in representing employees and working with them, who understand the law well - all the regulations and some of the things that we take for granted. I have pointed out in the past - and I know a lot of advocates for working people do - what their rights are. In many situations, people do not have an advocate, and often they do not understand the laws. If they get into a fight or an argument with their employer or if they have had a troubled working relationship and it has become unbearable and they say, "That is it. I cannot take any more," the employer says, "Well, guess what? I am withholding a week's wages from you, because I have that right under the Employment Standards Act."
They do not say it in that way, but they say you can get lost, lose a week's pay and quit on the spot.
The principle that the Member for McIntyre-Takhini espoused, that a day's work is worth a day's pay, is certainly something that I agree with. Most of these employees are simply not going to say, "Well, I will call the 1-800 number, contact the director of employment standards and get a copy of the Employment Standards Act, so that I can see this through and get my week's pay back." I do not believe that this happens in the majority of cases and I think that is one of the reasons that the statistics for this particular issue do not really bear out what goes on.
I think, without question, the most common instance is that, when this happens, the employee, in reality, puts an ugly experience behind them, but suffers a great hardship as a result of it.
The provision on the employer in this act states that, without notice, there is a penalty of severance. The issue comes down to the ability of the employer to plan. Usually, it is in a more long-term working relationship. There is a provision for a length of time, from my reading of the act, before this particular requirement upon the employer kicks in. The issue comes down to a bit of planning. If there is three weeks' notice given, there is one week's pay. If there is two weeks' notice there is two weeks' pay. If there is four weeks' notice, which is quite often the case and quite manageable in some cyclical industries, in my experience, then there is no payment by the employer to the employee. In that regard, I believe there is some fairness.
The problem is with respect to section 50. There is no doubt in my mind that this does not create a fair situation. The employee and the employer, by definition, when they are in this type of situation, just do not have a balanced relationship. In low-wage service-sector jobs, which a lot of them are in, the employee has the legal right to form a union, bargain about things such as just cause, seniority provisions for layoff and notice. Unfortunately, in many of the jurisdictions if people try to organize into unions in these industries they get scabbed out.
Of course, the Members opposite would never support any scab legislation. I see that the Liberals and the Tories in Ontario, where there is an election coming up soon, have committed to scrapping that provision. On their own, those people can never further their terms and conditions of employment through the right of association that we have. Given the reality out there, it is upon us, as legislators, to provide a framework in some cases. That is where the employment legislation is founded. That is why I believe that the principle of a day's work for a day's pay is important, and should be honoured. I would just ask the Minister how he can stand and say that this provision, which would keep this relationship balanced, is one that he is not prepared to put in the act.
Hon. Mr. Phillips: I hear the Member's comments. He has made them several times, and I know what his position is. I guess we have to agree to disagree. We feel that this is a balanced approach to that section - providing more severance for those who have put in more time, and some kind of balance for the employer, if someone quits without due cause. That is the difference between his party and ours. I am not going to convince them to come over to my side, and they are not going to convince me of their view.
Mr. Harding: How many jurisdictions in Canada have this provision?
Hon. Mr. Phillips: Newfoundland and Manitoba. The Member is talking about union contracts. I would point out to him that the Employment Standards Act is not meant to be a union contract. It is meant to contain some basic standards for the industry out there. He asked me about sexual harassment, and using the stats that we had about that. I gave those stats to the Member for Riverside, because he asked me for that number. He asked me how many complaints we have had, and I gave him those stats. I know that sexual harassment goes on in the workplace.
I talked about an example of that kind of stuff in the House a few moments ago that had not been dealt with. That happened in a government that had a collective agreement and all kinds of rules and regulations. I know that it goes on in the workplace. I deplore it, and I will do what I can to stop it. However, I do not think that I used the stats to say that it does not happen. We know that it happens, and we are all trying to do our best to prevent it from happening in the future.
Ms. Commodore: The Minister has just said that he raised the issue of sexual harassment a moment ago. What was he saying? Did he make allegations that someone was accused of sexually abusing or sexually harassing someone? The Minister just said that.
Deputy Chair: Is it the wish of the Members to take a brief recess at this time?
Some Hon. Member: Agreed.
Chair: I will now call Committee of the Whole back to order.
Is there further general debate on Bill No. 28?
Ms. Commodore: Just before the break, I asked the Minister to comment on one of the things he said in the speech he gave just moments before, in which he spoke about sexual harassment. I asked him if he could explain what he meant by that - was he making allegations against Ministers, or what was he doing?
While I am on my feet, I was on my way to the washroom just after the break. I heard a whole lot of laughter upstairs, and I stopped to listen to what was being said. I was a bit appalled to find that the laughter was over what had happened down here, when the Minister was telling me that I would be sorry if I brought this up again. I heard my name mentioned a couple of times, so I stopped to listen. I heard him say, "Yes, Margaret finally woke up." I would like this House to know that I am the critic for this bill and I was listening to every word that was being said. The Minister can say anything out of this House about me that he wants and make comments about me as an MLA, but someone up there just said, "Yes, Margaret finally woke up." I know that that has nothing to do with this bill, but I thought that I would mention it to him.
I would like the Minister to explain what it was that he was saying here before my question being asked of him.
Hon. Mr. Phillips: I did not say that Margaret finally woke up. If someone said that, perhaps they had good reason to say it. I imagine that there are days that go by where they make little comments about other people, as well. I am not going to stand here and defend what people say. Other people have their opinions; some have high opinions of the Members opposite and some do not.
I was talking about the fact that I know that there were some accusations made some time ago about an employee who was saying some very abusive things to other employees who were lower in the ranks. It was brought to the attention of the Minister. There was strong concern about it, but nothing happened. I heard it from some of the individuals who were verbally abused. There were women who were called some absolutely outrageous sexist things that should never be repeated in this House or elsewhere. I found it extremely offensive.
As the Minister responsible for the status of women and, just as a person, I found it extremely offensive that anyone could do that and get away with it, and that others knew about it and did nothing. Nothing was done about it. Some Members on the other side were aware of it. I knew they were, because it was raised publicly in this House. One Minister had had a meeting with some employees. They were aware of the accusations that were made. It is the kind of thing that should be prevented.
I realize that the employer has power over the employee, but those are the kinds of things that we should prevent. We are wandering from the bill at hand, but if the Member wants to know where my concerns were coming from, that is the answer.
Ms. Commodore: I thank the Minister for that explanation, because that was not what I thought he was implying at that time. If the Minister is talking about a form of sexual harassment, we can almost rest our case in regard to some of the amendments that we want to make. There are employers out there who will sexually harass individuals. The Minister has just gone on and talked about something that he alleges happened. We are saying exactly the same thing and that is the reason we are proposing to amend this bill to take care of instances like this.
Hon. Mr. Phillips: Sexual harassment is already addressed under the human rights legislation. I believe it is prohibited grounds.
Chair: Is there further general debate on the bill?
On Clause 1
Hon. Mr. Phillips: There is no change from the 1992 act.
Clause 1 agreed to
On Clause 2
Clause 2 agreed to
On Clause 3
Clause 3 agreed to
On Clause 4
Clause 4 agreed to
On Clause 5
Ms. Commodore: I have an amendment that I would like to include in this clause. I move
THAT Bill No. 28, entitled An Act to Amend the Employment Standards Act, be amended in clause 5 at page 2 by adding the following new clause
"5.1 The following subsections are added to section 8:
"(3) Except in an emergency, an employee who is requested to work in excess of his or her regularly scheduled shift and who has not been given notice at least twenty-four hours before the hours of work are required may refuse to work the additional hours.
"(4) An employee who has been given notice to work hours in excess of his or her regularly scheduled shift at least twenty-four hours before the work is required shall work the additional hours unless the employee has an emergency in which case the employee may refuse to work the additional hours.
"(5) On application of an employer or employee, the director may determine what is an emergency for the purpose of this section.
"(6) The Commissioner in Executive Council may make regulations describing what is an emergency for the purpose of this section."
Chair: Section 8 of the Employment Standards Act is not being amended by Bill No. 28. Unanimous consent, therefore, is required to allow this amendment to be moved. Is there unanimous consent?
Some Hon. Members: Disagree.
Chair: There is not unanimous consent; the amendment cannot be dealt with.
Is there further debate on clause 5?
Hon. Mr. Phillips: In light of the comments made by the Member for Riverside, I have an amendment I would like to propose. I move
THAT Bill No. 28, entitled An Act to Amend the Employment Standards Act, be amended in clause 5 on page 2 by adding a new clause:
"5.1. The following subsections are added to section 8:
"(3) Subject to operational requirements an employer shall make reasonable efforts to give an employee who is required to work overtime reasonable advance notice of this requirement.
"(4) Despite subsection (3), when there is an emergency, an employer may require an employee to work overtime on shorter notice than would have been provided under subsection (3).
(5) An employee may refuse to work overtime for just cause but is required to state the refusal and cause for refusing to the employer in writing."
That amendment was tabled earlier today, so all Members have a copy of it.
Chair: Section 8 of the Employment Standards Act is not being amended by Bill No. 28. Unanimous consent, therefore, is required to allow this amendment to be moved. Is there unanimous consent?
Mr. Penikett: We have not had a chance to read it carefully or consider it in the light of recent debate. It would be useful to have an explanation of exactly how the Minister thinks this improves his previous proposal.
Hon. Mr. Phillips: The way the 1992 act was written, they had to give 24-hours' notice of overtime. This allows for the employer to make reasonable efforts to give an employee advance notice of the requirement, and that an employer may require an employee to work overtime on shorter notice in an emergency. They could ask an employee, but if the employee refuses to work the overtime, the employee would provide the reason in writing to the employer.
Chair: Is there unanimous consent for the amendment to be moved?
Ms. Moorcroft: When the Minister announced his intention to introduce this amendment in general debate, he was asked about the provision that an employee may refuse to work overtime for just cause. Will just cause be defined in regulations? What does the Minister mean by that?
I have difficulty giving unanimous consent to an amendment I do not yet understand. I did not hear his response to that question yet.
Chair: Is there unanimous consent for the amendment to be moved?
Ms. Commodore: I would like to be able to study this a bit more, if it is an improvement on what is already in the act, since ours was not accepted. Since it is an improvement, there may be a possibility that we may support it because it would improve what is already there. I would like to ask the Chair if we could stand this over until this evening.
Hon. Mr. Phillips: I do not have a problem with standing it over. "Just cause" is not defined in the regulations; it would just be in law.
Amendment stood over
Clause 5 stood over
On Clause 6
Clause 6 agreed to
On Clause 7
Clause 7 agreed to
On Clause 8
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
Hon. Mr. Phillips: This is new since 1992. Increases to vacation time and vacation pay found in the 1992 act have not been included in Bill No. 28. The 1992 amendment concerning vacation pay for family members has also been deleted from Bill No. 28.
Clause 12 agreed to
On Clause 13
Clause 13 agreed to
On Clause 14
Clause 14 agreed to
On Clause 15
Mrs. Firth: This is the same as 1992, except for the words "14 consecutive days immediately before the holiday on ...". If it means the same thing, why did they change the wording?
Hon. Mr. Phillips: Clarification of the length of time an employee must be employed before being entitled to general holiday pay was made at the request of employers. An employee who works a regular shift - at least eight hours per day; 40 hours per week - is entitled to a full days' pay as holiday pay. Employers have questioned whether they must pay these employees general holiday pay when they are absent on extended leaves. The amendment is intended to deal with such situations by exempting employees who have been absent for at least 14 consecutive days preceding the holiday, and the payment of general holiday pay.
Clause 15 agreed to
On Clause 16
Clause 16 agreed to
On Clause 17
Clause 17 agreed to
On Clause 18
Hon. Mr. Phillips: This is new since 1992. Subsection 36.(1)(b) requires the employee to state in writing when she intends to start the leave and when she intends to return to work following the leave. In subsection 36.(3), it sets out the conditions under which an employee may return to work earlier than she had originally planned. In subsection 36.(4), if an employee has been unable to give four weeks' written notice of her intention to take maternity leave, the employer still must grant her up to 17 weeks of unpaid leave.
Section 36(5) ensures that an employee who takes an early leave due to pregnancy-related health problems can stay at home for a minimum of six weeks after the child is born or the pregnancy is terminated. The current act does not require the employee to state her date of return to work in writing. The amendment is intended to make it clear exactly how long the leave will last.
Clause 18 agreed to
On Clause 19
Hon. Mr. Phillips: There is a typo: section 19 at the bottom of page 9 should be entirely removed.
This is a slight change from the 1992 act. It limits parental leave to up to 12 weeks per couple, regardless of employer. The 1992 act limited leave to 17 weeks per couple only in cases where both employees worked for the same employer. Shared parental leave cannot be taken by both parents at the same time unless family circumstances are such that one parent is unable to care for the child. There is a change from the 1992 act regarding return from leave. The employee may return to work before the end of the leave period, either with the consent of the employer or by giving four weeks' notice, similar to maternity leave provisions in the 1994 act. It no longer includes provisions that presume that an employee who failed to give four weeks' notice of return to work has terminated their employment.
Mrs. Firth: Is there not a section missing? There is section 37.1(1) and (2), but there is no (3). It just goes on to (4), (5), (6) and (7).
It is right at the bottom of page 10, where it says (2) and then one goes to subclause (4) on the next page. Can the Minister see that?
What is in subsection (3)? I do not have that subsection in my bill. Perhaps I have a different bill than everyone else. Perhaps it is a trick to see if I am on my toes.
Hon. Mr. Phillips: I will check that. I have a subsection (3); it says "subject to subsection 37.2(1), the employee must complete the parental leave no later than the first anniversary day of the birth or adoption of the child or the date on which the child comes into the employee's care and custody", but I will check that. There were many drafts of the bill, so it could have missed the drafting boat. We can stand the clause over.
Clause 19 stood over
Mrs. Firth: For the Minister's clarification, subclause (3) appears to be missing in our bills. We go from page 10, which ends at subclause (2) to page 11, which starts at subclause (4).
Hon. Mr. Phillips: It will be stood over and I can check it at the break.
On Clause 20
Clause 20 agreed to
On Clause 21
Mrs. Firth: Is clause 21 new? Can the Minister give us an explanation?
Hon. Mr. Phillips: It is fairly straightforward. It says that notice of termination will not be required when an employee is hired for a definite task that does not exceed 12 months or when the employee is hired for a fixed period of time. If it is term employment, there will not have to be the two, three or four weeks' notice given. It will be determined at the time of hiring that notice is given that the contract is for nine months, or whatever.
Am I on the wrong one? That is what it is. If you are hired for a term, your notice is given the day you are hired.
Clause 21 agreed to
On Clause 22
Hon. Mr. Phillips: These are minor changes from the 1992 act in section 48. It increases the notice of termination that employers must give employees from one week to a maximum of eight weeks, depending on the length of service. It increases the notice of termination that employees must give from one week to four weeks, depending on the length of service. As well, related provisions to repeal section 50 have been removed.
Mrs. Firth: In the 1992 amendments, it was three months. This has been changed to six months. Why is that?
Hon. Mr. Phillips: It was amended on the floor of the House to six months in 1992, as I understand it.
Clause 22 agreed to
On Clause 23
Ms. Commodore: I would like to move
THAT Bill No. 28, entitled An Act to Amend the Employment Standards Act, be amended in clause 23 at page 14 by adding the following new subsection:
"49.(2) Notwithstanding the provisions of Section 50, where an employee terminates his employment with an employer, the employer may not deduct from the wages due to the employee."
Hon. Mr. Phillips: We have had fairly extensive debate on this amendment. Effectively, the amendment kills section 50 and we on this side are not in favour of the amendment.
Chair: Division has been called. Pursuant to Standing Order 44(5), it is my duty to ring the bells for division.
All those in favour, please rise.
Chair: All those opposed, please rise.
Chair: The result is 10 nay and six yea.
Amendment to clause 23 negatived
Chair: Is there further debate on clause 23?
Clause 23 agreed to
On Clause 24
Clause 24 agreed to
On Clause 25
Clause 25 agreed to
On Clause 26
Clause 26 agreed to
On Clause 27
Clause 27 agreed to
On Clause 28
Clause 28 agreed to
On Clause 29
Clause 29 agreed to
On Clause 30
Clause 30 agreed to
On Clause 31
Clause 31 agreed to
On Clause 32
Clause 32 agreed to
On Clause 33
Clause 33 agreed to
On Clause 34
Ms. Commodore: For the record, I would just like to say that the Member for Riverdale South keeps saying that it is the same as the NDP's, so I just wanted that on record.
Clause 34 agreed to
On Clause 35
Clause 35 agreed to
On Clause 36
Mrs. Firth: This version identifies some choices; the 1992 version was different. It said, "... to the person entitled to it, in accordance with the board or the Supreme Court, as the case may be ...". Why did this government decide to change that?
Hon. Mr. Phillips: This is the same as the 1992 act. I do not think there is a change in the wording from the 1992 act. We are looking at clause 36(a)? Yes, my notes say that there is no change from the 1992 act.
Clause 36 agreed to
On Clause 37
Clause 37 agreed to
On Clause 38
Mrs. Firth: Section 38 is a whole new section, as is section 40. It goes on for two and a half pages. Can the Minister give me a reason why this is here?
Hon. Mr. Phillips: This just clarifies and strengthens the director-liability provisions by making directors liable for "wages", and not for "debts", which is the current wording for services performed.
Mrs. Firth: Can the Minister tell us what consultation took place with the business community? Is it supportive of this initiative?
Hon. Mr. Phillips: They were one of the 70 groups that were sent the act. There was very little comment on this section at the time that it came out. As far as I know, there has not been a major concern raised about it. I certainly have not received any correspondence in the last few months about this section.
Mrs. Firth: I recognized a concern when I read it, and I have discussed it with a few employers and, in particular, a few directors. On page 22, it discusses the judgment or any lien, charge, encumbrance, mortgage or assignment. There is a concern that directors may be held liable, and will have difficulty getting mortgages. Is the Minister aware of this? Is there any concern on his part about this?
Hon. Mr. Phillips: It has not been raised by the Chamber of Commerce to me personally. Director liability provisions have been part of the act since 1985, and directors can purchase insurance to protect themselves from the seizure of personal assets. Some directors do that when they own a business. The sense here is that this is money that is owed to the employees, and it is felt that the employees should have the rights to that money.
Mrs. Firth: No one disputes that. I just want to know what analysis has been done about the impact it may have on the business community. Has the department examined small-, medium-, and larger-sized businesses in the territory to see what the potential impact could be on those businesses, and whether or not there is going to be any undue hardships?
Hon. Mr. Phelps: On a point of clarification, my sense is that we are on section 38, and that the Member is discussing section 40. If I am wrong, I apologize. I understand that we have not yet cleared sections 38 or 39. Perhaps we could do that first.
Chair: We are on section 38.
Mrs. Firth: This is section 38 that I am talking about, where the directors are going to assume liability. The other sections, 40 and so on, go on and on about how they are going to accept it, and so on. Section 38 and section 40 are related.
The questions I am asking are general. I want to know why the government decided to put this in, why it has worded it this way and how much analysis has been done on the impact it might have on business. The particular concern that has been brought to my attention is about the directors assuming liability and then having difficulty getting mortgages. I understand the aspect of the insurance - the directors having insurance to cover that risk. However, I am interested in knowing what research the department and the Minister have done before bringing it into the House - it is a new law - to put it into law.
Hon. Mr. Phillips: My understanding is that this deemed trust section that the Member seems to be concerned about, was lifted from the Alberta act. This is something that is in their act and seems to work. I have not had one issue brought forward to me by any of the chambers of commerce.
I do have a comment. The Yukon Chamber of Commerce commented that the director of liability can, when taken in conjunction with improved priority of wages in sections 82 and 83, "replace directors and personal assets at risk." Again, I point out to the Member, as directors, they can take out insurance for that. All we are trying to ensure is that the employees get paid in the case of bankruptcy and insolvency. It is to cover that aspect of it and to put some priority on wages in the case of bankruptcy.
Mrs. Firth: A concern was expressed to me, and I understand the aspect of insurance and that directors can get insurance. My concern is that if someone is a director of a fairly large company and they want a mortgage, the banks will look at the aspect of their being directors and the liability of their assets. They would be required to get that insurance so they are not rejected for a mortgage.
That was a concern brought to my attention and I just want to know if the government has given that any consideration. I also want to know if the government feels comfortable that this is not going to impose any undue hardships on people who may want to be directors of companies, but do not want to provide another reason why they cannot get a mortgage or are a bad risk.
Hon. Mr. Phillips: I guess I do not have a clear answer for the Member, other than the fact that anyone in business who applies for a mortgage, when their assets and liabilities are listed, will have payroll and holiday responsibilities, and other responsibilities. It is all part of doing business. I think that is something that should be taken into consideration. I am sure the banks do look at that kind of thing with a business. This is to make sure that there is some priority on these wages, in the case of insolvency or bankruptcy.
Mrs. Firth: I do not think that anyone has a problem with that if it is the business. The problem is when one is a director. Perhaps we are asking people to assume more responsibility than need be. Because the government did not hear any complaints, they did not do any more research into it.
I prefer to see a new clause like this specifically brought to the attention of the business community to seek some consultation on it, but if the Minister has given it to the business community and has not heard anything, I guess they have had their opportunity.
Clause 38 agreed to
On Clause 39
Clause 39 agreed to
On Clause 40
Clause 40 agreed to
On Clause 41
Clause 41 agreed to
On Clause 42
Clause 42 agreed to
On Clause 43
Clause 43 agreed to
On Clause 44
Clause 44 agreed to
On Clause 45
Clause 45 agreed to
On Clause 46
Clause 46 agreed to
On Clause 47
Clause 47 agreed to
On Clause 48
Clause 48 agreed to
Chair: The time being close to 5:30 p.m., we will recess until 7:30 p.m.
Chair: I will now call Committee of the Whole to order.
Hon. Mr. Phillips: I move that you report progress on Bill No. 28.
Motion agreed to
Bill No. 77 - Access to Information and Protection of Privacy Act - continued
Chair: We are discussing Bill No. 77, Access to Information and Protection of Privacy Act.
Hon. Mr. Ostashek: The other day, in my summation of the second reading of this bill, I answered a lot of the questions that had been raised by the Opposition up to that point in second reading debate. I will not reiterate that information, but I will answer the questions raised the second day of the second reading debate. I hope that I will be able to answer all of the questions and, having given the information to Members opposite, it may speed up clause-by-clause debate.
During the second reading debate, we discussed the broad principles of this bill. I believe that there is agreement on these principles.
As the Member for Riverdale South pointed out, the Yukon was one of the first jurisdictions in Canada to enact access-to-information legislation.
This bill builds on and improves the first act, taking into account the improvements that have been made in legislation enacted in other jurisdictions in the last 10 years. It is true that the legislation is more complex than the current law, and there are several reasons for this.
Firstly, the exemptions to the general right of access to information are spelled out in greater detail to ensure the greatest possible access is provided. The right of individuals to have access to information about themselves is more explicit in this bill. Individuals also have the right to ask for information to be corrected.
The act provides for an independent review of government decisions with respect to access. It also puts in place rules that government is required to follow with respect to privacy of personal information.
During the second reading debate, the Leader of the Official Opposition outlined several principles from the Canadian Standards Association model code for the protection of privacy. These are very similar to the guidelines developed by the Organization for Economic Cooperation and Development in the 1970s, to ensure that the privacy of personal information was protected, in light of the capabilities of computers to amass information through such practices as data matching large quantities of information.
I believe this bill meets these principles, and the privacy provisions are specifically designed to limit government's collection of personal information to what it needs to carry out legally authorized activities and to protect this information from unauthorized use.
As I noted during second reading debate, several jurisdictions have enacted access-to-information and protection-of-privacy laws in the last three years. This bill takes into account the improvements made in this jurisdiction and includes several features not found in the Public Government Act. For example, the bill specifically gives the commissioner the ability to review a broader range of decisions or actions taken by government under this act. The commissioner can review, for example, the government's actions with respect to the use and disclosure of personal information. This will help to ensure that the government is meeting the standards of protection for personal information. The commissioner can also review any extension of the time limit for the responding to access requests. The act also states that the burden of proof in such cases is on the government to justify why the time extension is needed.
The provisions of dealing with burden of proof have also been expanded to deal with the burden of proof in cases involving third-party information.
There is a requirement for government to produce, within 10 days, any records the commissioner needs to conduct a review. The role of mediation in resolving access disputes has been enhanced by allowing the commissioner to mediate, not simply to engage a mediator for this purpose. The bill deals explicitly with electronic records. It provides for the creation of information that is available only in an electronic form.
With respect to personal information, it requires an expert's opinion if information is being denied to a person, because it could result in immediate and grave harm to that person's health or safety. This is an important addition because the government may not have the expertise to make these determinations. This helps to ensure this exemption is limited.
The bill is also clear about access to personal information for historical or archival purposes. As well, it provides additional guidance in subsection 25(4) in determining if the disclosure of personal information would constitute an unreasonable invasion of personal privacy.
During the second reading debate, I had provided responses to some of the specific questions and concerns raised by Members.
I will take a few minutes to provide answers to the other issues to ensure that the Members have this information at the outset of the Committee debate.
I also have two amendments to the bill, which I will now circulate so that Members have them. One amendment simply corrects an incorrect section in reference to section 44.
The other amendment is in response to concerns raised by the Leader of the Official Opposition during second reading about the exemption for business interests of third parties. This amendment makes it clear that there are three tests to determine whether a third-party business interest should be exempted from the general right of access. It must be information that is used for business or commercial advantage; it must be supplied in confidence to the government; and, there must be a reasonable expectation that disclosure of the information could cause some harm. It was referred to by the Leader of the Official Opposition during the second reading debate.
The Leader of the Official Opposition also raised a concern about the definition of law enforcement. This definition recognizes that law enforcement is not just a matter of proceedings for the imposing of a penalty or punishment; it is increasingly a matter involving such things as investigation and proceedings by which something is ordered to be done or by which compliance is enforced with respect to people's rights under a statute or licensing or a regulatory scheme. Examples of the provision for such investigations and proceedings can be found in the Employment Standards Act, in the Environment Act and the Public Health Act.
In keeping with the general efforts to provide clarity in laws, the reference makes clear what is otherwise obscure in the definition. This definition needs to be read in the context of the provisions of the act. For example, although the act allows for the disclosure of information, it does not require or compel disclosure. Law enforcement agencies would still have to meet other legal requirements, such as obtaining a search warrant, to gain access.
The Member for Riverside asked why an exemption is included for the information that is to be published within 90 days. The purpose of access-to-information legislation is to provide a legal recourse to people when they cannot otherwise obtain information they want. This legal recourse is not needed with respect to information the government plans to publish. This exemption provides the government with the first right of use to information and does not require it to change its plans to publish information in light of a request for the information.
At the same time, it does not require a member of the public to pay a fee under access to information to obtain information that will be available without charge. This exemption exists in other access-to-information acts for these reasons.
A question was also asked about whether or not the archivist was under a time requirement in section 26 to notify third parties when information is being requested that affects their interests. This section needs to be considered in conjunction with the time limits for responding to access requests, which is 30 days.
Extensions to this 30-day time limit are allowed if it is necessary to consult with a third party, but any extension is subject to a review by the information and privacy commissioner. As I have already noted, the burden of proof in such cases is on the government to show why an extension is justified.
The practical effect of these provisions is that the government would want to show that it is diligently meeting the time frames set out in the act. In other words, the notice to a third party would be issued within 30 days of receiving an access request.
If the time period extends beyond the 30 days, it would then be as a result of the notice provisions in the act, which are designed to balance the public's right to access with third parties' right to privacy.
The Member for Riverside also questioned the rationale for section 55, which states that, with limited exceptions, statements made by a person to the information and privacy commissioner are inadmissible in court. The reason for this section is to ensure open communication and full disclosure to the commissioner. Providing for full disclosure is seen to be so important to an effective review that the commissioner should not be compelled, except in a few circumstances necessary for the effective operation of the act, to disclose information that has been disclosed to him or her in the course of conducting a review. This provision is included in other access-to-information laws.
The Member for Riverside also asked about the possibility of a temporary commissioner. As I have indicated in response to similar questions during debate on the Ombudsman Act and Conflict of Interest (Members and Ministers) Act, it is our view that it is better to take time to properly implement this act.
In addition to the appointment of the information and privacy commissioner, there are several other things that have to be done before proclamation. The information directory, required under section 63, has to be prepared. Regulations on such things as fees are needed. As well, our practices and procedures on the collection and handling of personal information have to be reviewed, to ensure that we effectively meet the requirements of this act. This will take some time.
However, I have indicated that this act, along with those establishing the ombudsman and providing for conflict-of-interest rules for Ministers and Members, will be brought into force by this time next year, at the very latest.
I hope Members find these comments helpful, and we will respond to any further debate.
Mr. Penikett: I thank the Minister again for responding in some detail to the concerns that were expressed during second reading debate. I will say to him that, in my view, even with the explanations he has provided tonight, I am not yet persuaded that Bill No. 77 is superior to the Public Government Act, and he will not mind if I remain a skeptic on that score.
I appreciate that the Minister has gone to some lengths with respect to some of the questions we raised. I was hoping that the Member for Riverside might participate in this discussion about the definition of law enforcement in section 3, since he shared the concern that I raised there.
The Government Leader has attempted to clarify things tonight by making it clear that access to this kind of information will still have to be done by legal means. If I heard him correctly, this will not give the authorities the ability to obtain information that they would not have been able to obtain previously, except by way of a warrant.
The Government Leader responded to my concern about section 12, about the role of the archivist's access to private information when the request was made, by saying - and I am paraphrasing here - that the decision about the release of the information resided with the department; the department had ownership of it, which is as it should be - and I guess the Government Leader is saying that the archivist is the gatekeeper, as a convenience in having a one-window approach for information. However, even though he said that, and even though I am absolutely persuaded of the professional qualifications in the discussion of the archivist, it is still not clear to me from the information given whether the archivist would, in the course of carrying out their work, have access to the information. When you are dealing with private information there is a special onus on the government to make sure that there is no unnecessary access.
If the archivist is simply to be the messenger of a department's decision about whether or not to release information, which is not true under the existing laws, it seems to me that there is a role for the archivist; however, the archivist is simply a messenger - you place your request with the archivist, the request goes to the department, and the department says yes or no, then the archivist conveys that information, either passing on the requested information, or passing on an explanation from the department that they did not have it. I know that archivists deal all the time with sealed information, or closed information. In the historical records, they also have all sorts of private information they have had for a long time. Even though I understand better what the intent of the government is, I would still like to have my mind put to rest on that one point.
In regard to section 16, and the question that I raised about the final plan or proposal to change a program or to establish a new program, I mentioned that the clause was significantly different from section 48(2)(h) of the Public Government Act.
I think I heard the Government Leader's explanation of that in the second reading debate, but I am not sure that I understand it. Of course, the second part of that clause, dealing with 16(3), which is about increasing the time limit for non-disclosure to 15 years from the previous 10, is a very significant issue. I understand why many institutions want to have the period for non-disclosure as long as possible, but the previous Legislature decided on the 10-year time limit after its Members had the benefit of consultation and some professional advice. I do not want a long debate, but I would like to have some debate on the merits of those two time periods.
Section 18 is where I noted that my legal advisor had complained that the lawyers had got a hold of this clause. It is probably no accident that this is a clause about disclosing legal opinions. It may be that the legal drafters felt that this was especially important to have something that gave justice to their profession rather than to the English language. In the description of the clause, I would if I may, since we are in general debate, just read an extract from it to give some sense of the flavour of the language. It said, "A public body may refuse to disclose to an applicant a record that is subject to solicitor-client privilege." That is clear enough. Or, clause (b), which says - hold your breath here - "That was prepared by, or for, a public body in contemplation of, and for the purpose of, existing or reasonably expected proceedings in court, or before an adjudicative body, regardless of whether it has been communicated to or from a lawyer."
I find that a mouthful; perhaps other people would not. I do not want to spend a lot of time on that.
We had questions about the exemption in section 24. We may have to debate this a little, but my reading is that this exemption has been changed quite significantly in the sense that there is no need for the information to be supplied in confidence. We talked about the proving of harm, and the Government Leader has accepted the suggestion about the three tests, which I think exists in other legislation, and has indicated that there will be an amendment here. I do not have any further problem on that.
The Government Leader spoke of section 12 about the archivist's ability to extend the period for which they were giving information in order that the applicant define more precisely the nature of the information they have. The Government Leader has clarified the intent of the legislation better by suggesting that the use of this power by the archivist will be subject to an oversight by the privacy commissioner, which really makes it even more critical that there is broad support for, or approval of, the person who is to have that role.
Section 28 was also an area where I raised questions about the narrowing of the public interest override. It has been narrowed to, I think, environmental health and safety issues. I understand why that would be done, but I am not sure that I am entirely happy about it. I would like, when we get to that clause - or now if the Minister prefers, but at some point - to get an explanation of why it was narrowed to those precise criteria. It seems to me that the broader division was a better principle. Perhaps there is an argument about precision being made here.
I raised questions also about section 70 and the different proclamation dates, but the Government Leader has responded to those points to my satisfaction.
If I could summarize, I am not inviting debate on this point, but I think that the question about whether or not this is better legislation than the Public Government Act is a live issue for me.
I would like very much to hear a little bit of debate about the law enforcement definition in section 3, about which we raised questions. I am somewhat satisfied, as I said to the Government Leader, about his assertion that they could not gain legislation under this act without a warrant, if a warrant had been previously required under other laws, but I would like to have the comfort of hearing the lawyers in this House speak to that issue.
I would like to have a bit more comfort about the right of the archivist under section 12 to view private information. I am satisfied with what is being proposed in section 26, but I also have a question about section 28, which is about the public interest override. I also want to be sure I understand the government's intentions in section 16 as it compares with the provisions of section 48 of the Public Government Act.
Those are my general observations, at the outset.
I may not be able to provoke any of the lawyers in the House into this debate, but I certainly would like, for all of our sakes, to hear some further discussion about clause 3, either when we come to it, or in general debate.
Hon. Mr. Ostashek: I thank the Member for his comments. As we go through, clause by clause, I do have an explanation for each clause, and I would be happy to debate that and try to give a better understanding to the Members opposite about what the intent of the legislation was. If somebody else wants to enter into general debate on this, I do not have any difficulty with that.
The only issue that I would like to touch on now is about the archivist, and he or she is there to help facilitate requests. Any access to personal information would be limited to only what is necessary for the act respecting the rules of limited disclosure. I see the archivist strictly as a facilitator to handle the requests so that people are not running all over government trying to get access to information. I think this will make it simpler for the public and I think it is a very workable solution. I will be happy to hear any further debate on this from the Members opposite.
As I said, I have a fairly lengthy and detailed explanation for each clause and as we move through clause-by-clause debate, we may wish to get into the debate on the areas of concern to the Members opposite but, for general debate, I would be happy to hear from other Members.
Ms. Moorcroft: On a spurious point of order, I would like to introduce one of my constituents, Aileen Horler, who is here with her children, Brodie and Angus, tonight. Brodie was unable to be here last week with the other grade 5 students from Golden Horn School and wanted to see the Legislature in action. I am sure all Members will welcome them.
Chair: Is there any further general debate?
Mrs. Firth: I want to cite an example and ask the Minister how it would be dealt with when it comes to people's personal information.
The Department of Health and Social Services has been conducting health surveys. I remember that health survey as a participant. One of the questions asked was whether or not I owned firearms. Of course, the question irritated me, because I did not feel there was any real relevance to the issue of health - other than that of suicide issue, but I still did not feel it was relevant.
Now that the Government of Canada is going to have firearms legislation in place that requires mandatory registration, and so on, if the police know the government has information surveys with respect to firearm ownership in the territory, will they be able to access that information on the respondents who admitted that they were firearm owners?
Hon. Mr. Ostashek: I believe that section 37 of the act will cover that. In response to the Member's questions, I do not believe that people are identified on those surveys.
Some Hon. Member: (Inaudible)
Hon. Mr. Ostashek: Is your name on the questionnaire? I find that hard to believe. The information is gathered for statistical purposes. Why would a person's name be on the survey?
Mrs. Firth: The people questioned were asked what their social insurance numbers are, how many children they have, what the children's names are, and so on. I was a participant. A lot of people identify themselves when they answer the telephone, so the survey is hardly confidential. However, some people were identified by social insurance number and by name on the surveys. My concern is this: if another law is passed, information that has been given by private citizens in the form of surveys and questionnaires - one is always told the information is kept confidential - and other laws supersede our laws, is that information then provided to the other inquiring government body?
Hon. Mr. Phelps: I asked that very question of the Bureau of Statistics. All of that information is specifically protected under federal legislation, the Statistics Act. As I understand it, it is powerful federal legislation that protects the privacy of all of that information.
Mr. Penikett: There is one key difference between the federal Statistics Act and our legislation, and that is that the federal Statistics Act has the power to compel one to answer questions.
Some Hon. Member: (Inaudible)
Mr. Penikett: It protects the government because it can compel one to answer the questions. There are some privacy protections in there. I am actually proud of the fact that, as an Opposition Member a long time ago, I actually opposed the government of the day introducing a similar act here. I will not claim that it was by force of argument, but perhaps some of my concerns appealed to Members on the other side, because they did not proceed with the legislation; they dropped it. Clearly, there was an effort, at one time, to have similar legislation here.
We were just talking the other day about social insurance numbers. I remember very clearly that the federal government promised it would not use them for exactly this kind of reason, and they obviously have been. In this computer age, they are obviously a very convenient identifier. If you have a nine- number code, you can pick up almost any adult in the country; one can see the appeal.
Before we go into clause-by-clause debate, let me ask a question of the Government Leader, which is in the broadest possible policy terms. This is a question that he may be able to answer right away.
We have many frustrations getting information in this House. I will cite a recent case. The Member for Faro, the Member for Riverdale South and one other Member were trying to get information about the government's decisions on the centennial anniversaries program - about which communities are going to get funding. The Minister clearly indicated that the communities had been informed, or were informed, or some had information about what projects were going ahead. I was always taught that an announcement of that kind, in a parliament of the British model, had to be announced first in the parliament, as we are the representatives of the people, and then later to bodies like municipalities, First Nations and others who may have applied.
It is ironic that we are debating this bill - and I am only using that as an example from Question Period of information that I thought was a reasonable example of public information that should have been available to the citizens and to the Members when they asked for it, especially when the Minister had the information and admitted that he was providing it to other parties, and it is not private information, it is information about taxpayers' money.
I would not have had a problem if the Minister had said, "Look, we are going to do a simultaneous release of the information to the communities and to the Legislature." However, there is a principle, which is that the Legislature should know first. We have recently had a case where a public official whose job it is to communicate about a program was denied an opportunity to communicate about that program because it was in a meeting sponsored by my caucus. I think that is a problem, in terms of access to information, for the people who would attend the meeting.
I am not here to complain about those things; I am just using them as examples. What I really want to ask the Government Leader is a general question. Given the current governmental culture that we operate under here in the Yukon in 1995, in practical terms, what, if anything, will change in the handling of information or the access to information with the passage of this bill?
Hon. Mr. Ostashek: That is the purpose of this bill. The Member opposite is fully aware of the frustrations he went through when he tried to get information, as did my colleague, the Minister of Health and Social Services, when he tried to get information. He was stonewalled, and he finally went to the Supreme Court of Canada. This will allow people access to information unless the government can come up with a very valid argument as to why that information ought not to be released. We can go to the access commissioner, rather than having to go to the supreme court. I believe that this will give the general public much better access to information. In this bill, we also have limited reasons why the government can withhold information. It is spelled out fairly clearly in the bill. If we stray from that, then the government is walking on fairly shaky ground.
This will serve the public much better than the legislation we are working under now.
Mr. Penikett: Let me ask the Minister a three-part question. I want to use three cases, all of which are known to him, and ask him how things would be different with this legislation. The Government Leader's advisor, Ms. Moodie, who has been around in the government throughout the change of government, may be able to advise him on this.
I want to use the case of the request for information about the decisions on the CAP funding that was denied us in the Legislature as part A of the question. Part B of the question is about the petition put forward by Mr. Phelps for access to information about Yukon Energy Corporation.
The Government Leader's answer was not clear to me in the Legislature the other day about accessibility to information of the Yukon Energy Corporation. It may be an answer in the affirmative, but I would like to have it confirmed.
The third case I have mentioned is the time that I went to court to try to get access to a political poll that was paid for with taxpayers' money, but it was denied me because I guess it was considered - Mr. Phelps may help me with this - advice to Cabinet, and therefore privileged and not accessible. In the Public Government Act, we were very conscious of those cases and we tried to make clear that with the proclamation of that act, the courts would be able to rule the way they had in the Phelps case or the Penikett case. I am not sure about the CAP case, but I would like to hear the Government Leader respond to all three of those.
Hon. Mr. Ostashek: First of all, I will deal with the CAP, because I do not believe the Legislature was denied information about the CAP. The CAP was announced at a time when the Legislature was not sitting. Had the Legislature been sitting, it would have been proper for the Minister to make a ministerial statement to announce the program in the Legislature. What we are talking about is the mechanics of the program and which five communities first received first-stage approval. I think it is only common decency and courtesy that those communities be notified first, prior to a press release, or prior to the Legislature being advised. I think that that is the proper way of doing business. I do not believe that we were going against democratic policies. We were consistent with what other legislatures do across the country. That was not a new program that was announced. It was not something new. The Members are fully aware of it. It was an approval process. I think it is important that if the Leader of the Official Opposition is dealing with the government on some aspect, even if it is in the public domain, that we must afford him the courtesy of notifying him first before we notify the rest of the Yukon. I do not believe that was an issue.
I do not have all the information on the legalities of the Phelps appeal, or anything else, so I cannot answer that question. The other one, number three, when the Member tried to get a political poll, is addressed in section 16 of this legislation. That is as far as I can elaborate on it at this time.
Mr. Penikett: I am batting one of three which is not bad - maybe two out of three. I do not want to spend a lot of time on this, but I do not agree with the Government Leader on the CAP thing.
Other than the political advantages of a Minister controlling the information, I cannot see any harm that would flow from the Legislature being told at exactly the same time the five communities are told. We have talked to a couple of communities, and they have already got the information, but the Legislature still has not been told. I have a problem with that. It is my view that the Legislature should be told first.
I do not disagree with the Government Leader about courtesies to people. If he were to announce that Mrs. Firth were about to become the new privacy commissioner and ombudsperson, I think she should probably know before the press release is issued by the government. I do not think that, if the Legislature is sitting, it should be denied the information for very long.
I do not have any other comments in general debate.
Mrs. Firth: I want to follow up with another example, because I see in clause 16 where they cannot refuse to disclose information.
Under subsection 2(e) it says "an economic forecast". I want to ask the Minister responsible if that means the economic forecast before or after it has been vetted by the Deputy Ministers Review Committee?
Hon. Mr. Ostashek: I believe that, in all instances regarding access to information, we are talking about the final document that will be going out. I do not see that this access to information will give any of the Members access to draft communiqués and so on. It will have to be the final document that goes out, unless there is something specific. They should not even know about the existence of confidential documents prior to the final document that goes out to the public.
Mrs. Firth: That is the concern I have. The clause says that we cannot be denied access to the economic forecast. It does not say anything about it being the final document. We have already had a go-around in this House. We have indicated, as Opposition Members, that it is our preference to have the economic forecast before it has been vetted by anyone.
If there is going to be someone, just as the Minister did, making a subjective decision about this information, the intention is not there to provide it. It is the same with the opinion poll. If one says that the public opinion poll cannot be kept from us, what does that mean? Does it mean the opinion poll or the summary that is going to go out to the public? If we are going to interpret what every piece of information that the public body must not refuse to disclose to us, it takes away from the openness of the bill.
The economic forecast is a perfect example. When I read this and it states that an economic forecast must be provided, I read it as being the economic forecast, before anyone in government has had a chance to fix it up, change it, review it, doctor it or anything else. An economic forecast is an economic forecast.
Hon. Mr. Ostashek: The Member is absolutely right. An economic forecast is an economic forecast. It is the Member's opinion that it is being vetted, but that is not the case. The policy clearly stated what was being checked for: accuracy. Any errors were taken up with the economist before the document was released. That is the proper way to do things. We do not want to put flawed information out.
It is not being vetted for political content. That is why it is being done by a committee of deputies, not by the Executive Council Office, to make sure the information given out is consistent and verified.
The Member is saying that if any employee issues a document, it should be available to the public, even if it is not checked for accuracy. I think that would be a mistake.
We have set out the policy about how economic forecasts will be handled and when they will be released. Therefore, one would actually be receiving the economic forecast.
Mrs. Firth: If just anybody in the government issued a document, it would be a different story, but the economic forecast is written, based upon accurate information that the branch gets from every department in government. Those are the sources of that information and that information is accurate.
Once a document is reviewed or vetted - or whatever the Minister wants to call it - by the government, the document is then called into question. We had the same problem with the gambling report. It went to the Cabinet for review first, rather than being a public document.
I think it should have been a public document. It was a public process, and it should have been made public as soon as it was released. It should not have needed to be reviewed by Cabinet first.
I am just raising the point to the Minister that if one is going to claim to have access to information and be open and accountable, one has to do just that, not be selectively reviewing, vetting, looking at and checking out documents before they are made public, and especially when they are listed in such detail. For example, what is "any factual material"? That could refer to a comment of the Minister about any paper. If it is factual material, it should be public information.
What does it mean, then? Perhaps the Minister could tell us what that refers to.
An opinion poll is self-explanatory, as are the terms "statistical survey", "appraisal of property", "economic forecast", "environmental impact statements", "the consumer test report or a report of a test carried out on a product" - they are fairly specific.
Hon. Mr. Ostashek: The Member basically answered her own question when it comes to economic forecasts. She said that it was based on information that is given by the department. I think the departments have a right to see if that information is interpreted accurately before the report is released. I think it is only the proper way of doing business, but we could debate that forever, and we will agree to disagree, because she believes that every document the government handles - no matter at what stage - should be public information, and I do not. So, our opinions differ. I believe that as we get to these clauses, I have explanations for each, and I will be quite happy to answer them when we get into clause-by-clause debate.
Mrs. Firth: Perhaps the Minister could answer a question of principle. He has just stood up and said that I think that just about every document that is produced in government should be public. I agree. I do not know what the big secrets are. Perhaps the Minister can tell us what his principles are. What documents does he think should not be made public?
Hon. Mr. Ostashek: The act clearly spells that out; that is what we have this act for. Cabinet documents are not public information for 15 years. There are other confidential documents within government that, at times, would probably do more damage than good if released to the public, and they ought not be released. Sometimes people do have to work in confidential situations. This act clearly limits what the government can control and that is spelled out time and time again in this act. That is one of the reasons for this act and why it is an improvement over the act we now have - it clearly limits what the government can say is not available to the public.
Mrs. Firth: What would be an example of a document that would be more harmful to the public if the public learned about the information?
Hon. Mr. Ostashek: Personal information or third-party information is something that the government ought not to release to anybody.
Mrs. Firth: We all agree with that. The Minister said that some information could be more injurious to the public, not meaning one person, if the public had the information. I just want to know what the Minister supports that statement with. Give us an example.
Hon. Mr. Ostashek: I have given the Member an example and that is Cabinet documents.
Mr. Cable: In his opening remarks, the Minister addressed the concerns that I raised previously in debate, but there is one point that I am not sure about and I would like to hear it again so that when we come to section 26 I will completely understand what the Minister is saying.
There does not appear to be a time period when the clock starts to run on the notification of third parties. In the British Columbia bill, the person who responds to the request has to promptly give the third party a notice. I notice that in the Public Government Act there was a 30-day period in which the request had to be processed. Notice to the third party had to be processed. I think the Government Leader indicated that there was an initial 30-day period in which the request and the notice must be processed, but I cannot find that. Am I looking in the wrong place?
Hon. Mr. Ostashek: I believe the Member's concerns are addressed in section 11 of the act.
Mr. Cable: What the Minister is saying - after I have had a chance to correlate this - is that the initial notice period will be subsumed within that 30 days that is talked about in section 27. Is that correct?
Hon. Mr. Ostashek: Yes. Section 11 says that is the general rule - that requests will be responded to within 30 days. The exceptions to the rule, which are outlined in section 12, are limited and very specific.
Mr. Cable: I thank the Minister for that information. I will have a look at that as we go through the bill. I was interested in a comment the Minister made in relation to section 23 that relates to the refusal to give information that is going to be disclosed within 90 days. I note that, in the B.C .bill, there is a 60-day period. The Minister made a rather interesting comment. He said that section is in there because there is a first right of use by government, which implies that the government owns this information. Is that really what he is saying?
Hon. Mr. Ostashek: If it is our information, we have some claim of ownership to it. This allows a public body to refuse to disclose information to an applicant, if it is going to be published.
If that information is published and available for purchase by the public, or within 90 days after the applicant's request is received, it is to be published or released to the public at any rate, rather than putting the department through gathering this information at the time, it is information that is intended to be released. In the regulations, we fully intend that people will have to pay some charges for certain levels of inquiry, depending on the amount of work involved for the departments to gather the information. Otherwise, we will need a lot of staffing in each department just to gather information for people. There will be some charges in the regulations. Why should we be charging somebody for information that will be made available within 90 days?
Mr. Cable: I think back on the little kefuffle we had on the report on gambling. There was no work required for that; the report was there. It was simply a matter of handing it over. What possible reason would there be for not immediately handing the information out, if in fact the government had determined that eventually it was going to be public?
Hon. Mr. Ostashek: There are a few reasons. The report on gambling was a report that was made for Cabinet, and Cabinet chose to release it after they had a chance to review it. Cabinet Members should have the right to look at it before it goes out to the public, so that they are in a position to answer questions about it. I would not want it released to the public and then have the Ministers asked to respond to it without even having had the opportunity to read the report before it was released.
In this case, the information that is being requested may not yet be fully compiled. It will be released to the public within 90 days. It would take extra work for the department to do it, and we would be charging somebody for it. They will not have to pay for it in cases where it is going to be public information.
Mr. Cable: The act required that the gambling report be made public, I believe. I think that was eventually acknowledged. When we get to that section, I will be asking the Government Leader why, in British Columbia, they can release the information within 60 days and it is necessary here to have a 90-day period. Why do we feel that we have some administrative problems that require another 50-percent time period?
I will leave it at that, because I am not totally satisfied that the administrative problems should govern the operations of this act.
Hon. Mr. Ostashek: I will just comment on that. As I have told the Members time and time again, we have researched all the access-to-information legislation across Canada and the time period varies from 30 days to six months. We picked 90 days for public disclosure.
Chair: Is it the wish of the Members to take a brief recess?
Some Hon. Members: Agreed.
Chair: We will take a brief recess.
Chair: I will now call Committee of the Whole to order. We are dealing with Bill No. 77. Is there further general debate on the bill?
Hon. Mr. Ostashek: On the Official Opposition's request on section 28, I would like to go over it now, and there may be more questions when we get to it.
The public interest override exists only in the Ontario act and in the Public Government Act. Other jurisdictions have not included it and there are questions about in what cases it would be used. It is my understanding that Ontario has had great difficulty in defining such a situation. Section 28 of our act does not only allow for the disclosure in cases of serious environmental or health hazards, it requires disclosure.
Mr. Penikett: I may spend sleepless nights thinking about this, but I do not think I will spend a lot of time trying to debate it now. I do not ask for it now in terms of holding up the legislation, but if the Minister's advisor has some actual detailed information about the experience in Ontario, for future reference I would be interested in reading or receiving it.
Hon. Mr. Ostashek: Yes, we tried to contact their offices in Ontario today, but we did not have much success. We will continue to try to get more information for the Member opposite.
Chair: Is there further general debate on the bill?
On Clause 1
Clause 1 agreed to
On Clause 2
Clause 2 agreed to
On Clause 3
Mr. Penikett: The Government Leader gave an explanation, in response to my question about law enforcement, which I understood, but he clearly buttressed this information with some reference to something I am not sure was legal advice or a legal opinion, or some specific reference to the act. Could the Minister elaborate?
I understood that his position was that one would not be able to get anything under this act without a warrant that one did not need a warrant for before - that is clear. I understood the explanation about various kinds of law enforcement bodies, including employment standards regulators, but could the Government Leader elaborate a little bit? That is my one concern about clause 3.
Hon. Mr. Ostashek: What I said in general debate was that this definition explicitly includes investigations and proceedings taken and powers exercised, for the purpose of requiring or enforcing compliance with the law, recognizing that there are law enforcement activities. The intent of this section is not to expand on that definition of law enforcement, but to clearly state what is not evident from other parts of the definition. Where we may run into problems - and I do too, to some extent - is that this definition should be read in the context of the act. It should not be read in isolation from the act. It does not require or compel disclosure of personal information for law enforcement purposes. It allows for disclosure; the other legal requirements to obtain information are not waived. It has to be taken in the context of the whole act.
Mr. Penikett: Unlike the Public Government Act, there is no longer a necessity for a penalty or sanction to be involved. I guess we are talking about an order being made under an act or investigation for the purposes of requiring or enforcing compliance with the law. I am not sure I understand that language.
The language in (c) and (d) that have been added in clause 3 seem to be very broad to me, and that may be done with good reason. That was the reason for my original question.
Hon. Mr. Ostashek: Perhaps it may help the Member opposite if I read him the first paragraph on the quite lengthy explanation of the definition of law enforcement.
Paragraph (d) in the definition of law enforcement makes clear what is not otherwise clear in definition. I know the Member opposite does not buy that argument. Anything that paragraph (d) would cover is already covered in paragraphs (a) to (c), or could easily be covered by the way in which the acts are drafted. Paragraphs (a) to (c) would cover things as long as any contravention of the act is an offence, and it is currently by virtue of a section of the Summary Convictions Act, but this technical obscurity is not in keeping with the plain language and clarity in the statute, so paragraph (d) is intended to give clarity on a point that would otherwise be obscure.
Perhaps we can get our legal friends to say how clear it is. I am not certain about it, but that is the main context of the definition of law enforcement and the rationale behind having section (d) there.
Mr. Penikett: I confess that I am no clearer than I was before, and that is a problem because we will be asking citizens to read and understand these laws. If it is not clear to me, it may not be clear to my constituents.
I do not want to hold the clause up. It may be useful if the long and detailed explanation that the Government Leader has can be converted into something that I can read. It may be more obvious to me.
Hon. Mr. Ostashek: We will do that for the Member.
Clause 3 agreed to
On Clause 4
Clause 4 agreed to
On Clause 5
Clause 5 agreed to
On Clause 6
Clause 6 agreed to
On Clause 7
Clause 7 agreed to
On Clause 8
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
Mr. Penikett: We have the benefit of the Government Leader's explanation for this clause, for which I had expressed a concern about, because it seemed to me that, at first reading, it could give the archivist or the government an ability to give almost endless delays.
Can I ask the Government Leader this question: I understand that this will be subject to the oversight of the privacy or the access commissioner, which is fine. Did the government consider the option of more precise language than the phrase "reasonable period" in section 12(1)?
Hon. Mr. Ostashek: If I could just take the time of the House to read the full explanation for section 12 into the record, it may give the Members opposite some comfort about why the term "reasonable period" was used: the section sets out the conditions under which the normal 30-day requirement for responding to access requests can be extended. These conditions are: if the applicant has not provided enough detail to enable our archivist or public body to locate the record; if a large number of records have been requested and must be searched, and to do so within a 30-day period would unreasonably interfere with the operations of the public body; if more time is needed to consult with a third party or another public body before deciding whether or not to provide access; if a third party has asked the information and privacy commissioner to review the public body's decision to disclose information about a third party under section 48. These provisions recognize the rights of privacy owed to third parties and allow for third parties to exercise their right under this legislation. The other conditions are reasonable exceptions to the 30-day time limit for responding to access requests.
Under 12(2), the applicant can ask the information and privacy commissioner to review any decision to delay a response beyond the normal 30 days. The archivist is also required to notify a person of the delay, the reasons for it, and when a response can be expected. These requirements provide a balance between the provisions of allowing for an extension beyond the 30 days under particular and specific circumstances and the public's ability to obtain a response to an access request within a reasonable period of time.
In comparison, this provision is provided for in B.C. and Alberta legislation. The acts in Nova Scotia, Saskatchewan, Ontario and Manitoba also have similar provisions.
Clause 12 agreed to
On Clause 13
Clause 13 agreed to
On Clause 14
Clause 14 agreed to
On Clause 15
Clause 15 agreed to
On Clause 16
Mr. Penikett: As I indicated in general debate, this is an area where I am not sure I fully understand the Government Leader's explanation for the difference between the provisions in this clause of Bill No. 77 and those provided in section 48 of the Public Government Act with respect to the disclosure of the final plan or proposal to change a program or establish a new program.
Could the Government Leader take a minute to explain what he intends there?
Hon. Mr. Ostashek: This list is similar to the one in the Public Government Act. However, it also includes economic forecasts, which is not found in the Public Government Act. As has been noted by the Leader of the Official Opposition, it does not include a plan or proposal to establish a new program or to change a program. This does not mean such reports are not available. There are no specific exemptions for such plans and proposals within the act, so they would be available unless they contained information otherwise exempted under this act.
For example, if such a plan or proposal contained information about the management of personnel that had not yet been implemented, it could be exempted under section 17, or the section of the plan dealing with the personal management issues could be separated from the record and the balance disclosed.
Mr. Penikett: I thank the Government Leader for that explanation. Could we now debate the provisions in subclause (3)? Why did the government move to a 15-year rule rather than a 10-year rule on disclosure of this kind of information?
Hon. Mr. Ostashek: This is consistent with the time limit on Cabinet confidences, as I mentioned before. As policy advice is often provided to Cabinet in the form of submissions, using the same time limit makes sense. Other jurisdictions use 15 years, or more in this case. As outlined in section 15, other exemptions may still apply to earlier records. In comparison to other acts, in other jurisdictions, the Public Government Act has similar provisions, although there are variations in detail. The proposed act most closely reflects provisions in B.C.'s and Ontario's acts, and the Public Government Act. I understand from the Member opposite that the Public Government Act was 10 years.
Mr. Penikett: I think the trend in Canada is to have the law reflect an attitude more of openness and accessibility. I suspect, over time, the trend will be to shorten the period for which documents are archived. Logically, of course, the Government Leader is talking about consistency with Cabinet records. Logically, of course, we could have achieved consistency by reducing the period on Cabinet documents, presumably in law, to 10. Did that possibility occur to the government?
Hon. Mr. Ostashek: This could be a point of debate, but when I look through the explanations that have been given me, under the proposed act the exemption does not apply to records in existence for 15 years or more. The Public Government Act used 10 years. The 15-year provision is keeping Cabinet records, as I have said.
The Alberta act stipulates 15 years. Other jurisdictions exempt even older records, ranging from 20 years in Ontario to 30 years in Manitoba. So, we thought 15 was an appropriate number.
Mrs. Firth: After going through these clauses I want to ask a question. Earlier, we debated the whole principle of changing the previous piece of legislation that was debated and voted on in the Legislature. When the decision was made to draw up a new piece of legislation, did the Minister give any direction to his officials about what he wanted in the legislation and why he did not like the Public Government Act and what principles the Government Leader supported? All that we have received in the form of a defence from the Minister is that Alberta does it this way and all of the other jurisdictions do it this way so we picked a, b, c or d.
I find it difficult to get a clear, concise answer from the Minister about whether or not this bill contains principles that his Cabinet believed in, or that there was some clear, political direction about access to information. Perhaps the Minister could enlighten us on that.
Hon. Mr. Ostashek: I thought that I did that during second reading debate when I said that this government updated the Access to Information and Protection of Privacy Act from the Public Government Act. There have been several other acts passed elsewhere since then and we believe that we have taken into consideration all of those acts in proposing this act. In places this act differs from the Public Government Act. The Leader of the Official Opposition is still not convinced that this is a better act, but I believe that it is; however, that is a point for us to debate.
This government is trying to be consistent with access-to-information acts in other parts of Canada.
Mr. Penikett: Well, my final word is that it would be hard to persuade anybody that increasing the time period for which information is held from 10 to 15 years is an improvement or consistent with openness and accessibility. This is obviously a case where the Public Government Act is superior to Bill No. 77.
Clause 16 agreed to
On Clause 17
Clause 17 agreed to
On Clause 18
Mr. Penikett: Clause 18(b), as has been noted, has been written by a lawyer. I would be extremely surprised if Ms. Moodie, being a skilled stylist, could not improve on it in two or three minutes. At least she could put it in language that could be understood by mere mortals, rather than lawyers. I am not going to propose an amendment, because that would be a waste of time. However, I am sorry that it was not done before.
Clause 18 agreed to
On Clause 19
Clause 19 agreed to
On Clause 20
Mr. Penikett: Once again, we have the time limit increased to 15 years from 10 years, and I regret that.
Clause 20 agreed to
On Clause 21
Clause 21 agreed to
On Clause 22
Clause 22 agreed to
On Clause 23
Mr. Cable: The act, as presented by the Minister, seems to pretty well follow, holus-bolus, the B.C. act. I am not quite certain why he feels that the 60-day period in the B.C. act has to be enlarged to 90 days. He got into this partly in the general debate. What is there that has to be done here in 90 days that the people in B.C. can do in 60 days? Why was the 60-day period in the B.C. act not followed?
Hon. Mr. Ostashek: When I answered the question in general debate, I said that we used what the majority of acts across Canada follow, and that is 90 days.
Mr. Cable: Is it the Government Leader's position that section 12(1)(b) would protect the archivist where there were a large number of records being requested? The Government Leader indicated in general debate that the 90 days was addressing an administrative problem. Would section 12(1)(b) not serve to deal with some administrative problem that would relate to a large number of records being accumulated?
Hon. Mr. Ostashek: No, I do not believe so. This section has nothing to do with administrative problems. It allows for records to be withheld when they are going to be published within 90 days or if the information contained in the request for records was already available to the public. If the information being sought is already public, the person can use alternate accessible channels to acquire the information.
With respect to the information that is going to be published, this exemption allows the government the right of first use of the information. Individuals do not need the legal recourse that access-to-information legislation provides, because the information will be made public. An individual can get it once it is published.
As I said, we took the one that is most used across Canada, which is 90 days.
Clause 23 agreed to
On Clause 24
Hon. Mr. Ostashek: This is one of the clauses for which there is an amendment. I move
THAT Bill No. 77, entitled Access to Information and Protection of Privacy Act be amended in clause 24 at page 21 by deleting subclause (1) and substituting the following clause for it:
"(1) A public body must refuse to disclose to an applicant information
"(a) that would reveal
"(i) trade secrets of a third party; or
"(ii) commercial, financial, labour relations, scientific, or technical information of a third party; and
"(b) that is supplied, implicitly or explicitly, in confidence; and
"(c) the disclosure of which could reasonably be expected to
"(i) harm significantly the competitive position, or interfere significantly with the negotiating position of the third party,
"(ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied,
"(iii) result in undue financial loss or gain to any person or organization, or
"(iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute."
Ms. Moorcroft: I had one question on the amendment. Could the Minister explain what is meant by one of the clauses?
There is a statement that the public body can refuse to disclose information where the disclosure could result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied.
Could the Minister give an example of that, or explain what the worry is and what the government is trying to prevent here?
Hon. Mr. Ostashek: There may be a place from which we get business information that is of value to government and it is important to keep it coming to the government. I believe that this clause is trying to cover that.
Ms. Moorcroft: I am just concerned that the language in that clause seems to establish a pretty large escape clause. Does the Minister have a more specific example to provide?
Hon. Mr. Ostashek: What is important here is that all three principles have to be applied to the information that comes under any of these clauses before it can be withheld.
This exemption requires three conditions to be present for business information to be exempt. These are when information is being used for business or commercial advantage, when information is supplied in confidence to government and when disclosure of the information could reasonably be expected to result in harm to a third party.
An example could be the price the Yukon Energy Corporation pays for fuel. One does not want that figure to be public, because it would give competitors an advantage. How much per litre the corporation pays is secret information. The overall fuel bill is recorded in its reports. This goes to competitive tender, and it would be a disadvantage for one company to know the bids of others. That would be one example, but it may not be a good one.
Mrs. Firth: Who is it that the law is trying to protect in this circumstance?
Hon. Mr. Ostashek: The person or the business supplying the information.
Mrs. Firth: Who determines whether or not that information should be protected? Is it the government, the business, or who, and just how much leeway is there to make that determination?
Hon. Mr. Ostashek: That is where the three principles I just read out are applied: Is it confidential information? Can it be used for business or commercial advantage? Could this information be reasonably expected to result in harm - financial or otherwise - to a third party?
Amendment agreed to
Clause 24 agreed to as amended
On Clause 25
Clause 25 agreed to
On Clause 26
Mr. Cable: I am still not fully satisfied with the Minister's explanation of the time periods in section 26, as they relate back to the time period found in sections 11 and 12. In the B.C. act, the archivist must promptly give the third party notice. Why was the word "promptly" left out of the draft?
Hon. Mr. Ostashek: I do not think it was a conscious decision to leave it out, but I am not sure that "promptly" has any legal definition.
Mr. Cable: The draftsmen in British Columbia, whom I assume are pretty highly paid, obviously thought it did, as did the British Columbia Legislature.
How this section operates is that in section 27 there are 30-day periods running, after notice is given. If you look back at section 11, there is a 30-day period to make a reply after the request is received, which can be extended under section 12(1)(c). It would seem to me, unless there is some onus on the archivist to promptly give notice, it is almost certainly going to trigger section 12(1)(c).
I do not think the sections are totally integrated. Now, to be fair, I notice it follows the same general pattern as the British Columbia legislation.
Hon. Mr. Ostashek: The Member may be quite right that it would trigger clause 12(1), but the government still has to be able to justify why it requires the extension past the 30 days. That is the key and that is the balance in this; it is not a carte blanche for this to be done - the extension has to be justified.
Mr. Cable: It seems to me that the problem was anticipated by this House in 1992 under the Public Government Act. In section 58(3), it says that a notice referred to in subsection (1) shall be given within 30 days after the request for access is received. There is some sort of hammer on the archivist to respond promptly.
Hon. Mr. Ostashek: There is here, too. He must respond in 30 days, except under section 12(1). We must have justifiable reasons for not responding. I think it is covered there.
Mr. Penikett: I must raise this other issue with the Government Leader - since I raised it in second reading - which is the language, which also does not seem to be precise, the phrase "where practicable". The one lawyer to whom I showed this legislation did mention to me, as I said at second reading, it could be possible to have the release of sensitive information without knowledge of a third party. The Government Leader explained that you have the problem of defunct companies, and companies going out of business, and you cannot chase a corporate entity all over the planet in order to find them, and I freely concede that possibility. I am, however, a little concerned about the imprecision, if you like, of language which says "where practicable." I am not suggesting that this would happen, but it does seem to me to provide an excuse to release sensitive, private information if someone interprets the phrase, "where practicable", to mean: "Well, I tried to get a hold of so-and-so, or party X, and just could not."
I did not know what obligation the law would say would be required to meet that test. It seems to me that this is a reasonable concern that we ought to address for a moment here.
Hon. Mr. Ostashek: I had hoped that one of our Members with a legal background would get into the debate on this. I do not know what else I can add to what I have already said to the Leader of the Official Opposition.
Mr. Penikett: Perhaps I could address a question to one of the two lawyers present at the moment, as to whether or not they can give me any comfort about the precision or the rigor of a definition for the term "where practicable" in cases like this. Is it language of art? Is it language that lawyers use? Is there a well-understood meaning? Does it have any precise meaning?
Hon. Mr. Ostashek: The only thing I can add to this is that I think the act is very careful all the way through about protection of third-party interests. The rationale that I gave the Member for this is that if one cannot find a third party that is no longer in business or whatever, the information should be released. I think that is why they have used the term "where practical". I am not a lawyer, but I think that if one was to look at this in the context of the entire act, it would be seen that it goes to great lengths to protect third-party interests. This is a clause that will allow people to gain access if that third party is no longer in existence.
Mr. Penikett: It is interesting that the silence of the lawyers speaks volumes about the precision of these two words - "where practical".
My problem is that it is not hard to imagine the existence of people, persons or entities in the Yukon who have, as far as the public record is concerned, disappeared. There may be people living in the bush, who have retired or who do not have a driver's licence any more, and they may be very difficult to get a hold of. They may have chosen extremely private lifestyles. If we were to release information about that person because we could not find them in the phone book or on the tax records and could not find them in the usual government ledgers, but they were still there, it seems to me that there is the potential for harm. I do not want to delay the clause, I just want to raise it as a possibility that troubles me.
Hon. Mr. Phelps: I have been goaded into responding. It seems to me that it sets up a situation where it is not an absolute requirement and that if there are reasonable reasons for not giving notification, the archivist has fulfilled his or her duty under the section.
I guess the issue then becomes what would happen should the third party, who has disappeared, suddenly reappear and say, "I was not notified; I was not given a reasonable opportunity and I am aggrieved and damaged, and so on." It seems to me that what this sets up is a defence for the official and, in turn, the government, which covers the official, if the archivist does certain things and meets certain standards of care as contemplated by the act, so it is not an absolute.
Clause 26 agreed to
On Clause 27
Clause 27 agreed to
On Clause 28
Hon. Mr. Ostashek: After the break, I read into the record for the Member opposite the information I had and added that cases of serious environmental or health hazards require disclosure; it not only allows for it. I promise to see whatever information we can get from Ontario for the Leader of the Official Opposition.
Clause 28 agreed to
On Clause 29
Clause 29 agreed to
On Clause 30
Clause 30 agreed to
On Clause 31
Clause 31 agreed to
On Clause 32
Clause 32 agreed to
On Clause 33
Clause 33 agreed to
On Clause 34
Clause 34 agreed to
On Clause 35
Clause 35 agreed to
On Clause 36
Clause 36 agreed to
On Clause 37
Clause 37 agreed to
On Clause 38
Clause 38 agreed to
On Clause 39
Clause 39 agreed to
On Clause 40
Mr. Penikett: I have already expressed my concern about this clause. I think that satisfaction on this point will depend entirely on who is appointed. I think we should all admit to the possibility that someone who may be suitable as a privacy commissioner or information commissioner may not be suitable in the role of ombudsman and vice versa. By saying that the one person will carry out the two roles, we may have made the task of finding a suitable candidate for both jobs slightly more difficult.
Hon. Mr. Ostashek: I appreciate the Member's concerns. I want to point out that other smaller jurisdictions - for example, Manitoba and New Brunswick - use the ombudsman as the independent review office under the Access to Information Act.
Clause 40 agreed to
On Clause 41
Clause 41 agreed to
On Clause 42
Clause 42 agreed to
On Clause 43
Clause 43 agreed to
On Clause 44
Hon. Mr. Ostashek: I move
THAT Bill No. 77, entitled Access to Information and Protection of Privacy Act be amended in subclause 44(5) at page 38 by substituting the number "55" for the number "56".
Amendment agreed to
Clause 44 agreed to as amended
On Clause 45
Clause 45 agreed to
On Clause 46
Clause 46 agreed to
On Clause 47
Clause 47 agreed to
On Clause 48
Clause 48 agreed to
On Clause 49
Clause 49 agreed to
On Clause 50
Clause 50 agreed to
On Clause 51
Clause 51 agreed to
On Clause 52
Clause 52 agreed to
On Clause 53
Clause 53 agreed to
On Clause 54
Clause 54 agreed to
On Clause 55
Clause 55 agreed to
On Clause 56
Clause 56 agreed to
On Clause 57
Clause 57 agreed to
On Clause 58
Clause 58 agreed to
On Clause 59
Clause 59 agreed to
On Clause 60
Clause 60 agreed to
On Clause 61
Clause 61 agreed to
On Clause 62
Clause 62 agreed to
On Clause 63
Clause 63 agreed to
On Clause 64
Clause 64 agreed to
On Clause 65
Clause 65 agreed to
On Clause 66
Clause 66 agreed to
On Clause 67
Clause 67 agreed to
On Clause 68
Mr. Penikett: Has the government made any decisions about fees, or can the Government Leader provide us with any information on that point?
Hon. Mr. Ostashek: With respect to setting fees, we do not have any specific amounts in mind at the moment. However, the fees that will be put into place will be reasonable and will not detract from the right of access that is given to the public under this act.
Mr. Penikett: Let me say that I support the latter point, because it is extremely important. If the fees are prohibitive, it would defeat the whole purpose of the legislation.
Clause 68 agreed to
On Clause 69
Clause 69 agreed to
On Clause 70
Clause 70 agreed to
Title agreed to
Hon. Mr. Ostashek: I move that you report Bill No. 77 out of Committee with amendment.
Motion agreed to
Hon. Mr. Phelps: I move that the Speaker do now resume the Chair.
Speaker resumes the Chair
Speaker: I will now call the House to order.
May the House have a report from the Chair of Committee of the Whole?
Mr. Abel: The Committee of the Whole has considered Bill No. 28, An Act to Amend the Employment Standards Act, and directed me to report progress on it. Further, the Committee has considered Bill No. 77, Access to Information and Protection of Privacy Act, and directed me to report it with amendment.
Speaker: You have heard the report of the Chair of Committee of the Whole. Are you agreed?
Some Hon. Members: Agreed.
Speaker: I declare the report carried.
Hon. Mr. Phillips: I move that the House do now adjourn.
Speaker: It has been moved by the Hon. Government 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 9:29 p.m.