[ Page 1513 ]

CONTENTS

Routine Proceedings

Oral Questions

Drafting of Bill 19. Mr. Williams –– 1513

Mr. Clark

Mr. Sihota

Mr. Gabelmann

Mr. Rose

Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L. Hanson) –– 1515

Mr. Clark

Mr. Gabelmann

Mr. Miller

Mr. Sihota

Mr. Lovick

Hon. Mr. Richmond

Hon. Mr. Brummet

Mr. D'Arcy

Appendix –– 1537

The House met at 2:07 p.m.

HON. MR. STRACHAN: I just noticed a couple of good friends from the great riding of Prince George South in the gallery. Would the members please welcome Burke Purdon and Lawrence Coyik to Victoria.

MR. JONES: I would like to introduce to the House some constituents of mine from Simon Fraser University: Dr. Allen Seager and Joanne Ray, from the history department there. They're here today, and are very interested in labour history and in the discussions on Bill 19. I'd like the House to join me in welcoming them.

MR. PELTON: Today I'd like to introduce to the House a group of people from what we call the Rainbow Club out in Maple Ridge. The Rainbow Club is sponsored by our local community council and provides services in social, recreational and vocational programs. I would appreciate very much if the House would make them welcome.

MR. JACOBSEN: Visiting us today from Mission, we have two ladies: Bonnie Pyplacz, manager of the North Fraser Investment Corp., and her assistant, Jane Hayhoe. I'd appreciate it if the House would welcome them, please.

MR. RABBITT: Mr. Speaker, it's my pleasure today to have a long time friend in the gallery. Bob and Judy moved to Victoria a few years ago to retire and now are returning home to Merritt. I would like the House to offer a hearty, warm welcome to Judy Turko.

Oral Questions

DRAFTING OF BILL 19

MR. WILLIAMS: To the Minister of Labour. Mr. Leslie said there were two entirely separate processes underway since last year with regard to the drafting of Bill 19. The minister told us yesterday that that's just not true. Is the minister suggesting that Mr. Leslie is not telling the truth?

HON. L. HANSON: First of all, I'm not suggesting that Mr. Leslie is not telling the truth; I'm suggesting that Mr. Leslie's interpretation of what happened is not my understanding, and I was very close to it. As a matter of fact, I think that the member opposite is suggesting that there were two very distinct and isolated processes going on. There is no question that there was a drafting process going on during the hearing, but they weren't isolated, nor were they isolated from Mr. Leslie.

MR. WILLIAMS: But the minister said yesterday in question period: "That is just not true," with respect to these entirely separate processes. Is the minister saying this is just a matter of interpretation, or is he saying that Mr. Leslie is lying? How can you say it's a matter of interpretation, in view of Mr. Leslie's statements?

HON. L. HANSON: Again, Mr. Speaker, I thought that we had spent enough time on this particular subject. I'm not suggesting that Mr. Leslie's opinion is anything but his opinion. That's up to him. He's welcome to his opinion. All I'm saying is that it is not true that there were two processes going on in total isolation.

MR. WILLIAMS: Mr. Speaker, in his letter to the Premier, Mr. Leslie said regarding the Minister of Labour: "Little did he know that this process was indeed under-way." So the minister then is saying that Mr. Leslie is not telling the truth in that regard?

HON. L. HANSON: Again, Mr. Speaker, whatever Mr. Leslie says is up to him. I'm simply saying that I did know that that was going on, and I was very much a part of it.

MR. WILLIAMS: Mr. Speaker, Mr. Leslie said in his letter to the Premier, before the first draft of the minister's report had been written, that changes in Bill 19 had already been drafted. The minister said that's not true. Is the minister saying Mr. Leslie was lying?

Interjection.

MR. WILLIAMS: Okay, the minister, in responding to a question yesterday, which asked if the minister knew that the legislation for all intents and purposes had been finalized before his hearings were finalized, said: "That's not true." I think we've canvassed that. And yesterday, the Premier said Mr. Leslie was present for discussions with the minister and the Premier, during which the bill was gone over clause by clause. Mr. Leslie insists: "At no time did I ever, ever have any complete discussion, or was there even approaching a clause-by-clause discussion with him and myself about Bill 19. The minister was there." To the minister's knowledge, is Mr. Leslie lying about that?

HON. L. HANSON: Mr. Speaker, you know there were discussions going on, and Mr. Leslie was present. There were clause-by-clause discussions going on and Mr. Leslie was present. Mr. Leslie's interpretation of what went on at those meetings is Mr. Leslie's personal opinion. I just say that I was there, and there was that discussion that did go on.

MR. WILLIAMS: Can the minister advise us how many clauses were gone over clause by clause at that meeting?

Interjections.

MR. WILLIAMS: No. You cannot advise us? Was it one, was it two, was it three? We're talking about an 80-clause bill. Who's telling the truth? That's the issue.

MR. CLARK: In introducing Bill 19 in this House, the Minister of Labour claimed, and I quote: "The bill . Is tangible proof of this administration's commitment to open government." Then he said: "It is based on the views my committee heard at our public meetings around the province." Why did the minister neglect to inform the assembly that it was also based on another process going on here in Victoria?

HON. L. HANSON: Well, I really am not sure that I understand that as being a question, but by the same token, during the process that went on that was started in early

[ Page 1514 ]

November, the presentations that were being made were being analyzed and possible legislation as a result of those presentations was being prepared. And as each suggestion was prepared, some were accepted and some were rejected. So both processes were going on in tandem.

[2:15]

MR. CLARK: Before the public hearings, you said that this was the basis of the bill. In this House, you said it was the basis of the bill. Now you've confirmed that there are other people in the back rooms writing this legislation. Why did you not inform the House that there were two tracks, that there were two different processes going on to develop this labour legislation?

HON. L. HANSON: I really find it difficult to understand that the members on the opposite side would not understand that there is a requirement for more than myself sitting in isolation in a room making up my mind what to do. There's a requirement to put together a committee to generate this sort of thing, and the information that was coming in as a result of those briefs was being fed to that committee.

MR. CLARK: The question is simply: why did you not inform this House, why did you not inform the public, that there were other processes going on? Let me phrase this very carefully: will the minister outline how it was that he was not deliberately misleading the assembly by neglecting to inform us, here in this House, about the other process going on?

HON. L. HANSON: Again, Mr. Speaker, I fail to understand why anyone on that side would even suggest that there isn't a requirement that drafting go on during that process, because the information being gathered as a result of that process was being fed into that. If members on the opposite side feel that when legislation is brought forward there isn't a drafting process going on, then I'm surprised at them.

MR. SIHOTA: Supplementary to the Minister of Labour. Could he then tell us who specifically was involved in drafting Bill 19? Who were these draftspeople the minister refers to?

Is the minister refusing to tell this House who composed this select group that was drafting this legislation?

HON. L. HANSON: First of all, all sorts of people are involved in the drafting of any legislation. There always will be, and I don't know why that never comes up as an issue in drafting. We have members on staff who provide legalistic wording when, as it relates to legislation, we develop a philosophy within government. Those are the people, and I'm not here to mention to the other side all the individual names, because those people are part of a committee and they should remain that way.

MR. SIHOTA: Supplementary again — so the minister understands exactly which group I'm talking about. Mr. Leslie has revealed that the Premier had "a select group of draftsmen who had little or no accountability to the process." Who was involved in drafting Bill 19? Who specifically were these draftspeople referred to in that quote?

I'll put it another way. The minister refers to a committee. Perhaps he could tell the House who composed that committee that he refers to? Or does he not know?

HON. L. HANSON: Mr. Speaker, the whole legislative committee of cabinet was involved in that. Members of the staff and all sorts of consultants were involved after the hearings and during the hearings.

MR. SIHOTA: A question again to the Minister of Labour. Were any of these draftspeople private solicitors and barristers who acted on behalf of employers? Yes or no?

HON. L. HANSON: Well, Mr. Speaker, I think it is quite common practice for the government to use outside counsel and advice. We've done it in the past, and we will continue to do it in the future.

MR. SIHOTA: If the minister can't remember today — if he's had a momentary lapse of memory — will he agree to table in this House a list of those people who worked privately in the back rooms drafting this legislation while the hearings were going on?

MR. GABELMANN: In his letter to the Premier dated February 28, the Labour minister's recommendation No –– 43 says: "The often unique problems of the construction industry should not be addressed by legislation at this time." What events transpired that made the Minister of Labour change his mind to — in the words of Graham Leslie — enact proposals which would deunionize the construction industry?

HON. L. HANSON: Mr. Speaker, are we debating Bill 19 here, or is this question period?

MR. GABELMANN: We are not debating anything. We are talking about the serious economic consequences to the future of this province. I would simply like the minister to tell us, because we're talking about important legislative processes here....

The minister recommended to the Premier that no legislative initiatives be undertaken in respect of the construction industry. Mr. Leslie suggested that if those initiatives were taken, it would deunionize the construction industry. What happened between February 28 and April I or 2 to cause the minister to change his mind and in fact to embark upon a process which would deunionize the construction industry?

HON. L. HANSON: Quite frankly, Mr. Speaker, I don't agree with the assumption that the legislation does deunionize the construction industry.

MR. ROSE: To the Minister of Labour. The respected voice of Mr. Leslie, who has implored the Premier to withdraw the bill, has now been joined by Mr. William Hamilton, former head of the B.C. Employers' Council and former Postmaster-General in the Diefenbaker government. Will the government listen to these implorings, or has the Minister of Labour decided to take advantage of the option under standing order 78A, in which he can refer this matter of Leslie and other controversy surrounding this legislation to a parliamentary committee, at which time Mr. Leslie and any other interested party could come before the House — maybe Mr. Hamilton and perhaps others. This would give the House an opportunity to cross-examine Mr. Leslie and any other persons, so that we could get to the root of this matter.

[ Page 1515 ]

HON. L. HANSON: Yes, I think that has been considered, but that's a subject of future policy, and I'm not going to commit that recommendation here today.

MR. ROSE: Supplementary. I'd like the minister to tell us whether or not he understands that he is the only one who can do it under 78(a), and has he considered it? Has this been discussed? And when can the House expect an answer?

HON. L. HANSON: As I understand that rule, it allows the discussion of the bill but not the process of the drafting. And yes, I've given it consideration, but I'm not about to commit myself one way or the other at this point.

MR. ROSE: Supplementary, Mr. Speaker. The rule says: "At any stage after introduction a bill may be referred to a Select Standing Committee upon motion without notice made by the member in charge of the Bill." It has nothing to do with drafting; it's an opportunity for the committee to call and hear witnesses and get to the bottom of some of these controversies. It might even improve the bill.

MR. SIHOTA: A question to the Minister of Labour. Is it not true that in rejecting the suggestion made by my friend, the minister is afraid to hear evidence from the former Deputy Minister of Labour because he may indeed expose the phony consultation process that went on before this bill was introduced? Is it not true that the minister is rejecting it because he is afraid to hear from experts in this field who may reveal what happened?

HON. L. HANSON: First of all, Mr. Speaker, I resent the allegation that it's phony. I do believe that Bill 19 is a good bill, and I'm not concerned with the allegations made by the former deputy minister. There are a number of people who are just as expert in labour relations who consider the bill an excellent one.

MR. SPEAKER: I'd like to ask members if they could read their rule books this evening, especially 47A. I think they would agree with the Chair that some of the questions today may have been a little bit too argumentative and opinionated and not direct questions.

Orders of the Day

HON. MR. STRACHAN: Mr. Speaker, I call committee on Bill 19.

INDUSTRIAL RELATIONS REFORM ACT, 1987
(continued)

The House in committee on Bill 19; Mr. Pelton in the chair.

MR. CHAIRMAN: The table has been notified the second member for Richmond would like to make an introduction. Shall leave be granted?

Leave granted.

MR. LOENEN: I would like to introduce our daughter Marianne with two of her friends from Alberta, Liz Salomons and Bruce Voogd. Please make them welcome.

On the amendment to section 19.

MR. ROSE: This may take some time, because it really is a point of order, Mr. Chairman, but my reading of standing order 72 is that "witnesses may be summoned to attend before any committee of the House upon a motion to that effect being passed by the committee." Mr. Speaker, we are in Committee of the Whole, and this is a committee of the House.

So my argument is that this is a very appropriate time to bring before this committee of the House — or the bar of the House, if you like that language better.... I use for my citation Sir Erskine May's twentieth edition, page 746: "In Committee of the Whole House any Member may put questions...to the witness." I think that people such as Mr. Hamilton — anybody with an opinion whom the House decides to call — could be brought before the House for this purpose.

This is not a revolutionary idea in this committee. I don't expect to get your ruling on it immediately, Mr. Chairman, but it has happened before. In 1892 a motion was passed that called two citizens to the bar of this assembly to answer for newspaper articles which contained so-called scandalous libels about a certain member of the House. That might apply to what Mr. Leslie has said in being contradicted by the Minister of Labour. Mr. Leslie's statements about the actions of the minister, according to the minister and the Premier, are just not true.

[2:30]

If the Minister of Labour doesn't have the courage to move a standing order 78A, which he just turned down upon my representation, then maybe we should move in the committee a motion to invite Mr. Leslie — who, by the way, is not in charge here or on charge or on trial — to come and give us his version of what really happened, which seems to be extra parliamentary, unusual and perhaps not quite proper.

MR. CHAIRMAN: Hon. member, the Chair has got the message loud and clear. As you suggested yourself at the outset, the Chair is prepared to take your motion under advisement, and we will come back with a resolution on it as quickly as possible.

MR. ROSE: Thank you, Mr. Chairman. I wonder if I might be permitted to move the motion before you take it under advisement.

MR. CHAIRMAN: All right, but it appeared that we were getting into debate, hon. member, before we had the motion on the floor.

MR. ROSE: I was justifying my motion. The motion is that the Committee of the Whole House summon Mr. Graham Leslie of Vancouver to attend before the committee on Wednesday, June 3, at 2:45 p.m.

MR. CHAIRMAN: The Chair will decide whether the motion is in order in due course, and will report back. In the meantime, we will get back to the amendment to section 19 of Bill 19.

MR. CLARK: This is a very serious amendment. It could really be called the boycott amendment, because the original intent of the section was to allow the council to issue interim

[ Page 1516 ]

orders but not ex parte injunctions. In other words, both sides had to be heard. Now we have an amendment before us that says both parties don't have to be heard or present, but there has to be an opportunity for both parties to be heard. It is a very significant amendment.

There are full-page ads that say: "You talked and we listened." There's all kinds of propaganda around saying: "We are listening to the labour movement." This amendment did not come from the labour movement. This amendment didn't come from anybody except the government. It is trying to deal with the threatened boycott of this legislation by the labour movement.

It is very serious because it allows interim orders to be issued without hearing one party, which comes very close to an ex parte injunction, although it's admittedly not the same thing, because ex parte injunctions don't require any notice. This simply requires notice, and then it can be acted upon. It is very serious because the whole question of ex parte injunctions is the main reason for the Labour Code in the first place. Everybody knows that a lot of the turmoil in British Columbia, the jailings that went on in British Columbia in the late sixties and early seventies — sometimes as much as a year in jail was given labour leaders and other people who defied ex parte injunctions.... That was the turmoil that led to the creation of the Labour Code. Now this very simple amendment we have here allows this council to issue interim orders on an emergency basis without the requirement that both parties be present. This will have a very serious impact on labour relations. The Labour Relations Board avoided issuing interim orders because the problem with them is that both parties are not fully heard. This legislation allows interim orders and says that both parties don't even have to be present. This is very, very serious. Once there is an interim order down, then the danger is that it becomes an excuse, really, for treating the main application as not urgent. So this is the history of interim orders.

What happens is that there is a wildcat or something because of a legitimate issue, perhaps, and the board or the courts would order an injunction, send them back to work, and then the reason for the wildcat is never dealt with in an expeditious manner because the immediate impact, the economic threat, has been dealt with through an interim order. So it has serious implications, it seems to me.

I have a couple of questions and they have to do with the issuing of an injunction. They have to do with the next section and I can ask them under this section, but I think they're properly under this section. The next section allows for all decisions of the council to be filed in Supreme Court. Can an interim order that would be allowed under this amendment without both parties being present be filed in Supreme Court, assuming the next section passes?

HON. L. HANSON: I really fail to see where the member of the opposition gets the impression that the interim order can be made without giving both parties an opportunity to be heard. It says that very clearly in there. The doom and gloom that is being predicted from these various parts of Bill 19 is really hard for me to understand, quite frankly.

It's certainly not my nature to get into personal attacks or character assassinations, as has been going on this morning. My relative silence this morning I don't want to be misunderstood –– I resent the inferences that were made which say that I am a liar, or it was inferred that I was a liar, and that this legislation is a product of fascist thinking.

The suggestion that Bill 19 was drawn up as a result of isolated people drafting a bill is just totally false. As a matter of fact, I think there is demonstrated unprecedented consultation with unions and management, and all the other kinds of British Columbians who had an interest and work here and pay their taxes and are interested in rights, in what happens in our province and are interested in making their views heard.

It is being alleged under section 19 that I have introduced an amendment in order to deal with threatened boycott of the Industrial Relations Council. I don't think anything could be further from the truth. The amendment was introduced because unions — and I say unions — told me that, as originally worded, the IRC would have been able to issue interim orders without the necessity for the other party to be heard.

We've responded to that by saying that it's a requirement that the opportunity be given to the other party to be heard. And I ask you: what can be fairer? You know, all of this talk about a hidden agenda — what's going on? I don't understand you. The opposition has demonstrated that it is incapable of objectivity. Instead it prefers to twist and bend interpretations further even than this side of House thought capable.

I think it's a dangerous game of Chicken Little predicting that only the most negative consequences are a result of this bill. I think British Columbians are generally positive; I think they prefer the optimism of the government to the pessimism that's characteristically demonstrated by the opposition. I believe that we'll achieve our goal of an improved labour relations environment with an improved economic environment.

I request now that we get on with the debating of the substance of this bill without looking for hidden meanings and without getting into personal attacks.

MR. CHAIRMAN: Hon. members, if you will bear with me for a moment, the second member for Cariboo has asked for leave to make an introduction. Shall leave be granted?

Leave granted.

MR. VANT: I just became aware that in the precincts two very significant people from the great Cariboo constituency are with us this afternoon. We have Her Worship Mayor Donna Barnett of the village of 100 Mile House, home of the largest cross-country ski marathon in western Canada.

Also, I'm pleased to introduce Mr. Joe Katchmar, a road builder who for many years has helped improve our public road system in the Cariboo constituency. It's a job that is far from completed, since, as you all know and have heard many times, only one-third of our roads in the Cariboo are paved. I know the House will join me in welcoming these two people to our precincts.

MR. CLARK: Mr. Chairman, it's very tempting to respond to the minister's speech, which he read and which I don't think had much to do with this section, but I'm going to try to deal with it differently.

Consistently, in the first 19 sections, the minister has stood up and said,"This is the intent of the section," and we've stood up and said: "Even if that's the intent, there are other consequences as a result of legal interpretations that we've had by labour relations experts in the field, and by some of us on this side who have some expertise in these matters. Even if that's your intent, this clause doesn't do that;

[ Page 1517 ]

it does these other things." That's consistently been the case, and we're seeing that again here now.

If it's the minister's intention to do what he has intended, then surely it should say no interim orders should be granted without both parties having been heard. If that's what it said, then you wouldn't have as vigorous an objection. I might have an objection because I have a problem with interim orders — I think they don't work — but it wouldn't be the debate on this amendment if it said: "Without both parties having been heard, no interim orders shall be granted."

Would the minister consider that wording, if that's his intent?

HON. L. HANSON: Mr. Chairman, I don't know who the opposition has consulted, but to me, the council may give an order that it considers is of an urgent nature, but it's a requirement, in my opinion, after each party to the matter is given an opportunity to be heard. I think that covers what the member opposite is suggesting. If the member disagrees with me. I guess we have a disagreement, but I think it amply ensures, in the amendment to the bill, that both parties are heard. If one of the parties suggests that they don't want to be heard, they've been given the opportunity. I don't think you can force them to be heard if they don't want to be heard.

MR. GABELMANN: Mr. Chairman, we're into some fairly technical stuff here, and that perhaps leads to some of the misapprehension that exists across the House.

The original wording was of concern to many people, including members on this side of the House, because it allowed for interim orders. The principle of interim orders was what was being addressed, for a whole variety of reasons which we'll talk about when we get to the main motion.

The response of the government to the expressions of concern about interim orders was to take out the ex parte application wording and to insert wording that says: "The council may, after giving each party to the matter an opportunity to be heard...." I argued this morning, and I don't back down from this for a moment, that the government took advantage of the request for change to this section by inserting wording that would deal with a boycott.

If the minister says no, that wasn't their intention, I don't have any evidence to the contrary, so I have to believe him. But I find it highly doubtful, I must tell you, when it's so obviously an intent to find a way to allow for interim orders to be made, in effect, ex parte; there's only one side being heard.

I don't think we're going to pursue the debate on the amendment any further on this; we will go on to the main motion. But it needs to be said: whether or not the government intended this — and I don't have any evidence on that one way or the other — to be a mechanism by which interim orders could be made in the face of a boycott of the legislation and of the IRC, that's what they've accomplished by this particular wording. This wording does not deal with the complaints raised by the people the minister was alleged to have listened to for the last month or so.

[2:45]

Amendment approved.

On section 19 as amended.

MR. GABELMANN: Mr. Chairman, we're talking about interim orders. This process existed in different forms during the sixties, and there was a consensus across the entire spectrum of our society that this process is an inappropriate one; that hearings should take place prior to orders, We're debating section 28 of the Code, which is entitled "Hearing of complaint." The amended amendment that we're now debating is the opposite of a hearing of a complaint; it is no hearing. No hearing is allowed under an interim order. Both parties can make a presentation, but no hearing is allowed. If it's a hearing, then it's a different process; you don't have an interim order. You have an order, not an interim order. The word "interim" means: "This is temporary until we have a hearing."

Applications will be made, and without an opportunity for people who have arguments to make on each side, by calling witnesses or by whatever process they wish to follow.... Without an opportunity for them to have that debate in front of the council, an order can be made, and the effect of that order could be to wipe out the entire efficacy of the activity that's being questioned, and a hearing may then be held later which would be entirely irrelevant, because the timing of the activity is all that matters. And when you do that, you have denied people a fundamental right of natural justice which was denied to them during the sixties under the old process, and which led to all kinds of anger and bitterness because people felt they didn't have their day in court, When you have interim orders, you have a situation where people don't have their day in court.

I'm not going to take a long time on this. Everybody agreed in the bad old days that interim orders were bad news. Everybody agreed — not just labour, not just neutrals, but management too. And I hate to think that in two or three years we're going to reread the Hansard of this time and be able to say that we pointed all these things out to the government but they refused to listen, but that's in effect what's going to happen.

The Premier's chief assistant, the gentleman to whom deputy ministers have to report, David Poole, was interviewed on television last night, and he said the Premier would willingly consider any changes that had merit. I don't know how he's hearing these arguments from where he is at the moment, or how he heard them last week when he wasn't in the chamber, but nevertheless we have the word from David Poole that the Premier will seriously consider any suggestions that the opposition makes that have merit. Here is a suggestion that has merit. Let's not return to the bad old days of labour relations. You have to tie this together with all the rest of it, too, in terms of all the other changes, but I'm not going to make that argument now; we'll be getting into some other sections that deal with this issue in a more significant way than even this one does.

But this is a reasonable suggestion. Get rid of this idea that orders can be issued on an interim basis and, particularly, issued without a full hearing of the matters at hand. And if there's a concern that a decision won't be made quickly enough, require that the hearing be held immediately. It seems, from the composition of the IRC, that there are going to be enough people there to be able to, in one way or another, have hearings on any matter that's brought before them — immediately, if that's the need in a particular situation. But the introduction of interim orders without full hearings will lead to more bitterness and more distrust, and is yet another reason why this legislation will fail miserably in practice,

[ Page 1518 ]

HON. L. HANSON: I think that inherent in the concern being expressed by the member opposite is a suggestion that, on application, an interim order is going to be made. I'd like to point out that the board has the discretion to make an interim order, and I'm sure that the board, seeing a situation that may evolve that causes long-term harm, would structure a hearing very quickly as opposed to making an interim order. It simply says that they have the ability to, and I don't think that from having the ability to, it follows completely that that is going to be a fact upon application — and I'd like to point that out.

MR. GABELMANN: I've made this point before as well. We cannot debate what the IRC is likely to do, or might do, or should do. We have to debate the words in front of us, and the words in front of us allow for a situation as I've described. If the IRC shouldn't do it, then don't give them the power to do it. Remember, Mr. Chairman, this is going to be a council made up entirely of management and government appointees. It will have no labour representatives on it — not legitimate ones, anyway. And what confidence will there be in this kind of process? None.

MR. MILLER: First of all, I'm really tempted to respond to what the minister said just a few moments ago in respect, particularly, to the kind of debate that we've had in this House since it started in March. In my opinion, the debate has been reasonable, and I think the opposition has been entirely reasonable in terms of the measures introduced by this government. Certainly it is not us who introduced a labour bill that sparked more controversy than many things we've seen in this province in some years, and in my opinion we're doing our job in a fair and responsible manner.

Going back to this section, to me it seems just one more thing that has been piled on in the bill. I'm really quite surprised, in fact, even from a philosophical point of view. The drafters of this bill seem to have decided to write a rule to cover every situation, and I think that's a fundamentally flawed way to approach anything. I don't think you can do it.

The basis of the Labour Code was to establish a body that had the trust and the faith of the parties that had to use it so that the employees or the unions did not, over a period of time, feel that the board had a bias against them. And equally so for the companies: that the board didn't exist simply to protect unions at the expense of companies, and that's a fundamental and an important principle. Given the other language in section 28, I don't see the need to include this. I was active in trade unions in the old days of ex parte injunctions, and believe me, the feeling at that time among trade union people was that the courts were clearly on the side of the employers. Any time an employer needed an ex parte injunction, they came up with it; whether in the middle of the night or whatever, they always got it.

The Code changed things. It turned a corner in terms of the relationship between labour and management. And when I say that, it doesn't mean that all of a sudden all the disputes in the world were easily solved; that there were no more strikes or lockouts — or walkouts, for that matter — but that it provided a mechanism which over the long haul was a workable one. Now we've seen the inclusion of another clause that, given the preceding stuff and the stuff we will be dealing with, indicates a bias against labour. An order can be written and, given the kind of convoluted wording that we see in the bill, presumably that order can be issued without the discussion or at least the participation of both parties, and it can be done on an interim basis.

Again, getting back to some of the things that happened in the real world with respect to industrial disputes, sometimes they take the form of an overtime ban. I'll relate one that took the form of certain classes of tradesmen refusing to do a job. A new piece of machinery was brought into a plant. The company at the time ordered the machinists to use this piece of machinery. There was no history of this happening; in fact, it was the opposite. The machinists said: "We're not going to use it; the welders have claimed that job. We thought our contract contained some pretty strong language and that it was a clear-cut matter." If that matter had been decided on an interim basis, it would have been a festering sore in terms of that particular issue, and in my opinion would have gone on much longer than necessary. As it was, there was a hearing of the board, the matter was decided — and not to the union's satisfaction. Quite the contrary. A few eyes were opened in terms of exactly what strength there was under that particular section of the contract. Nonetheless, the issue was settled. We went down to the Labour Board in Vancouver. We sat there and had our eyes opened and actually got quite upset at one point about the thing, but nonetheless it was resolved.

So we've got one more clause that allows a distortion, if you like, in a very important principle in labour relations, and in terms of any board or council or whatever you want to call it that deals with it, and that's the principle of objectivity. If that isn't there — if that goes out the window — then labour relations goes out the window. We go back to those old days. We go back to the ex parte injunctions, and believe, me, ex parte injunctions didn't stop wildcats. There was a pretty clear law there, you know, and they'd go into the courts every time. We ended up negotiating some pretty big dollar figures across the bargaining table as a result of some of those things, but it didn't stop it. I think it's one more, and I'll continue to make the argument — and I hope I'll make it reasonably.

I have yet to hear a cogent argument from the minister as to why we're getting more and more interventionist and why you're stacking the new bill with all of these kinds of clauses. It seems to me that you're anticipating the worst scenario that could possibly be in terms of the activities of labour, and trying to cover it with a rule. Well, it won't work. Now that isn't really a question; it's a statement. But if the minister wants to respond, I'll listen.

HON. L. HANSON: First of all, I have to disagree with the member opposite, or I wouldn't have introduced the legislation. I think it will work. But I'd like to point out something in this clause that I think has been overlooked, and I think it's an important factor.

It says that the council may make an interim order, which is permissive but not mandatory. It also says that they must recognize that there is an urgency or an urgent situation. I think those two things are very important. I think that the suggestion that because the clause is there there is going to be a proliferation of interim orders is unlikely.

MR. MILLER: I am struck, Mr. Minister, by the illogicality of you saying that you've brought in a clause....

AN HON. MEMBER: Illogicality?

MR. MILLER: You can look it up. I will consult with my colleague for Nanaimo.

[ Page 1519 ]

First of all, you have introduced a clause that you say should only be used in an emergency situation. On the other hand, a short time ago you said: "Well, if it was an emergency situation, like a serious situation, it would be better to have a full hearing and not issue an interim order."

I mean, I am a little bit puzzled. You are also saying, in effect: "Sure, we have introduced this clause, but we don't have to use it." Mr. Minister, why put it in at all? Surely we deal in some logic in this House in terms of questions and answers, in terms of why things are contained in a particular piece of legislation. I am not able to follow it.

[3:00]

MR. CLARK: The member for Prince Rupert and the Charlottes made a good point, but I want to just follow it up.

Just for the minister's edification, what happens now is that if there is a wildcat strike or something of that nature, then there is very quickly a hearing before the Labour Relations Board and everybody goes back to work. They are ordered to, and there is a hearing. But if a number of employees are fired because of a union certification drive, and the union files unfair labour practices against the employer, then that's set down for hearing about six months hence.

That is a great concern I have with the existing system. Now this section says that they may make an interim order if it is urgent. Could the minister give us some assurance that these interim orders will also apply if a union files unfair labour practices against an employer? Would he give us that assurance on record?

HON. L. HANSON: Yes, I think I can give that assurance quite comfortably, because the clause is not meant, as the other side may suggest, that it is strictly an employer clause. I think that there are a number of cases where it could be a situation that an employee is fired, for example, for union activities, organizational activities. In that case, an unfair practice could be filed and an interim order could be issued that the employee goes back to work. Then a hearing is held later to decide on the facts of the case,

Section 19 as amended approved on the following division:

YEAS — 35

NAYS — 19

MR. CHAIRMAN: Just before we proceed, hon. members, the Ministers of Transportation and Highways and Health have some introductions to make. Shall leave be granted?

Leave granted.

HON. MR. MICHAEL: Thank you, Mr. Chairman and fellow members of the House. I would like you to make welcome Doug Abel, a constituent of mine from the community of Grindrod, as well as the class from Grindrod Elementary School. Grindrod is located in the north end of the Okanagan Valley, and it's a very lovely agriculture and logging community. Please make them all welcome.

HON. MR. DUECK: I'd like this House to offer a warm welcome to friends and supporters of ours from the central Fraser Valley, Mr. and Mrs. Peter Warkentin.

On section 20.

MR. GABELMANN: Section 20 allows for orders of the Industrial Relations Council to be filed in the Supreme Court whether or not the Industrial Relations Council wants those orders filed or even prefers that they not be filed. Any person, as defined in the act — any employer, any trade union and, in some readings, perhaps any trade union member — will be able to make an application to the Industrial Relations Council that an order of that council be filed in the Supreme Court, At that point, the Industrial Relations Council has no discretion. The Industrial Relations Council must file the order in the court.

This is major stuff, Mr. Chairman, because we have talked throughout the last nine weeks less two days about the significant sections of this legislation, and we have said that injecting the courts back into labour relations in a major way is a fundamental error. This section and the next three or four sections inject the courts into labour relations in a way that does not help labour relations; rather, it not only has the potential to inflame but will inflame the relationship between employers and their employees.

Once an order is filed in the court, any violation or almost any disrespect for that order becomes a contempt-of-court issue. It is no longer simply a question of not obeying the collective agreement that the board has interpreted should be obeyed in a certain way it's a civil issue. You take it out of the relaxed problem-solving jurisdiction of the Labour Relations Board, or hopefully this new council, and inject it into the courts, and make any violation a contempt-of-court issue, which is unquestionably.... Everyone would agree, except, I guess, some members of the special, select group who wrote this legislation, that the simple, automatic filing of orders — because this is what, in effect, it is; it will become automatic — will inflame labour relations almost as much as

[ Page 1520 ]

any other provision of this act, short of section 62 and short of the double-breasting and successor rights sections.

Why would the government want to deny this wonderful council, which it is establishing, this council which is going to play superman in this province...? I might say, without stretching it too far, this wonderful council that will play Superman to the government's Lois Lane. Why would they want this wonderful body, with this magnificent superman, Mr. Peck, to be denied the right to govern labour relations themselves rather than taking it out of their hands, taking away their discretion and giving no discretion and allowing the courts to become the agent of authority in these matters?

I think it's necessary to take a couple of minutes to review a few cases that have come before the Labour Relations Board in recent years on this very question of whether or not an order should be filed. The board has the power now, as I think I've indicated, to file orders on its own motion. That power continues in the amendment. On its own motion the board can file. I don't like it particularly, but I think that on occasion the board probably should have authority of that kind. What the amendment does is to say — and I think it's important to read this before I review these cases — "The council shall on request by any person or may on its own motion, file in a Supreme Court registry at any time a copy of a decision or order made by the council under this Act...." That includes interim orders, because it's not just a decision that comes from a process that includes a hearing, but also an interim order or collective agreement or whatever. That's unchanged. The essential change is that the discretion is denied to the board. They have discretion, but somebody else can usurp that discretion by making application.

[3:15]

I don't know the history well enough to be able to cite all the instances when the labour board has in fact filed an order with the Supreme Court, and I don't know whether this is the last one that they did. I doubt it; no doubt there have been others and my memory fails me on this issue, and I haven't done the research. But on March 16, 1984, there was a decision — a famous one, in fact. You wouldn't know it was famous by reading the dry legal language of the summary of that case, but it was a very significant one in the history of this province. It was J.C. Kerkhoff and Sons Contracting Ltd., and on the other side, the B.C. and Yukon Territory Building and Construction Trades Council. The applicants, Kerkhoff, asked the board to file in the registry of the Supreme Court the board's order dated March 12, pursuant to section 30 of the Code, which is the section we're now talking about.

In response to a complaint alleging unlawful picketing by the B.C. and Yukon Territory Building and Construction Trades Council and the carpenters' union, the board had issued a cease-and-desist order. I won't give the numbers. That order had been disobeyed. Since the decision, large numbers of persons had been picketing and access to the site in question had been impeded. It was argued by the BCYT and the carpenters that the order should not be filed until the reconsideration application had been heard. They also argued that this case was extraordinary. It had attracted much media attention. The building trades were treating this case as having much significance. The evidence did not establish that the applicants were suffering any particular loss by the delay. The board was asked to consider whether one of the applicants had scheduled this confrontation to ensure that any legal proceedings took place before construction was underway.

The decision of the board was that the order should be filed in the registry. The board took advantage of the discretion it had under the existing Code and decided that the order should be filed. The reasons for that, quoting the summary of the board decision:

"The first consideration in deciding whether to exercise power under section 30 was whether the order was being obeyed. Here there was complete lack of compliance with the order. That was not the end of the matter. The board had to be satisfied that it was consistent with the purposes of the Code as set out in section 27 (l) " — we had that debate this morning — "to file the order.

"As a general proposition, it made little sense to wait until a reconsideration application had been heard before filing the order. The expedited procedures under part 5 of the Code would be seriously undermined if the board's orders could be ignored pending appeal. In fact, precisely the opposite seemed more consistent with Code principles. The board should be most reluctant to give consideration to an application for reconsideration where the party seeking the reconsideration was in violation of the board's order.

"As for the special aspects of this case, there was not sufficient evidence to permit a finding that one of the applicants had deliberately scheduled this confrontation. There was an explanation for the strong stand being taken by the building trades, but it could not be accepted that the sensitive, labour relations response to this reality was for the board to turn a blind eye to the fact that its order was being ignored by a large number of persons even as the argument was being advanced to the board. The interests of the Code demanded that the order be filed."

Mr. Chairman, this is an important case; this was a watershed event in B.C. labour history. This was the Pennyfarthing-Stevenson case. This was the pre-Expo skirmishing that took place between the Bennett government and the building trades council. This was — I'm convinced historians will decide — a turning-point in whether or not British Columbia was to have an organized construction industry. From that day on, from the day that this order was filed in the Supreme Court — and further action would have been viewed as contempt of court — the building trades in this province began to lose whatever ability they had to have their companies, the organized companies, win major construction projects. You could argue that the Kamloops courthouse was in fact the first item in this process, the beginning of the death knell of the building trades. I would argue that the Pennyfarthing case was the beginning of the death knell.

Many in the trade union movement argued that even though this was filed in the courts, the building trades should have defied the order. If they didn't, the prediction was that it would be the end of the building trades. Many others counselled: "No, you cannot disobey a court order. The consequences are such...and given the nature of penalties these days, assets of both unions and their members would be seized to the point that they would be rendered insolvent." The voices of reason prevailed at the time, and no serious violation of the court order was embarked upon — and I emphasize "no serious violation of the court order." As a result, no contempt-of-court proceedings developed.

[ Page 1521 ]

Many people who argued for restraint in the response to that order at that time now kick themselves. They say there would have been no difference to them whether they disobeyed or obeyed the court order. Either way they were being driven out of business, and the finality of that became clear with the introduction of this legislation. Many would argue that we might not even need the legislation to ensure the destruction of the organized sector in the building trades in this province, that it was happening in any event as a result of a series of decisions and the policy of the government to not — if I can split an infinitive — impose a fair wage schedule on this province, despite the fact that we have a fair wage law in place. That's by the by.

For the purposes of this debate, I would argue that the board had an appropriate discretion as to whether to file or not to file. I think the evidence in this particular case is that persons and perhaps trade unions were violating an order of the board, and continued to violate that order while the consideration of whether to file in the courts was being considered, and that the board had very little alternative but to take advantage of the existing section 30 and to file. My friends in the labour movement won't like me saying that, but I think that the facts of the case are such that they had little choice. Stephen Kelleher chaired that panel, and Mr. Bell and Nora Paton sat on the commission. Despite the fact that they took a real roasting from a lot of people in the labour movement, you could argue that the board did the appropriate thing.

Given the existing wording of the law, this new Industrial Relations Council would have the same opportunity and the same option. But not with the changes. With the changes, any person, Mr. Kerkhoff himself or anybody working for that company, any trade union member, because under this act the definition of a person includes a trade union member.... Oh, the light already?

MR. CLARK: I'm appreciating so much the comments of the member for North Island that I would like to hear him continue.

MR. GABELMANN: We do make a farce of the 15minute rule, don't we? It was not my intention to.... I had no idea I had taken as long as that, Mr. Chairman.

Any person — and person is defined under the act — can make an application to the Industrial Relations Council, when and if this is passed and proclaimed, and the council must file that order. Let's look at some cases where they chose not to file orders and see whether or not it is an appropriate discretionary power that should be maintained.

October 1984: B.C. Transit and MTOC on the one hand, and ICTU Locals 1, 2 and 3 on the other. The facts of the case: B.C. Transit applied on August 17, 1984, pursuant to section 30, etc., requesting the board to file an order dated August 16, 1984 in the Supreme Court registry. In the latter part of August 17, 1984, the prohibited picketing had ceased.

Let's just repeat the dates. Transit applied on August 17 requesting the board to file an order of the previous day. The board had made an order the previous day, so the application is one day later. In the latter part of that next day, August 17, the day that the request to file was made, the prohibited picketing had ceased. So what do we have? On August 16, we had an order that certain picketing had to stop. On the morning of August 17, B.C. Transit said: "This picketing hasn't stopped. We are going to go to the board and request that the order be filed in Supreme Court." By the afternoon of the same day, August 17, the picketing had stopped.

Continuing the summary of the facts, the board said: "Since that time, the labour dispute that had generated the picketing had stopped due to the enactment of legislation." Some of us in this House will remember that, because we had fun with the current Minister of Tourism about that particular legislation. But that's another issue. In the summary, the reasons for the refusal to file this order are as follows:

"In these circumstances, the board was not prepared to file the order. Where the processes of the board had not achieved a cessation of the legal activity, the court's processes could assist. Here, hours after the board's reasons had been published and its order had been issued, the picketing had ceased and had not resumed. With no continued disobedience of the order, there was no need for the order to be filed."

As a result, what could have been an ugly situation was cooled out. It was cooled out in this particular case for a variety of reasons, but nevertheless it was cooled out. If, on the morning of August 17 — or perhaps even in the late afternoon of August 16 if time had allowed — NITC had gone to the board and asked that its order of August 16 be filed, that order would have been filed automatically. The council would have been required, under this change, to file that order. Midday on August 17, the picketing was continuing. Those persons would have been in contempt of court. Is that an appropriate "criminal activity" for those persons who hours later ceased their picketing? I suggest that it is not appropriate for that kind of activity to be made what is in effect a criminal matter: contempt of court.

What was easily and properly and civilly dealt with by the Labour Relations Board under the existing law of the day could not be dealt with in that way under this new legislation, and there are countless cases of a similar nature. One of the best is Trofast Construction and the carpenters' union. The facts and reasons here are lengthy, and if I was attempting to delay the House I would read all of the summary. In fact, probably I would read the whole decision. But I am not into that mode. I am not wanting to do that. But it is important to understand that in its decision the board said it would not give consent to sue or file an order prohibiting strike by unknown persons in view of the subsequent specific order giving the union the right to picket. That's the brief summary of the decision. Again, in this particular instance, and maybe it's necessary to go through all the facts in order to.... Well, I'll leave it for now.

[3:30]

Maybe the minister will concede the point we're making, without me having to take that much time. But given the situation in this kind, the minister I'm sure should agree — or must agree; I can't understand why he wouldn't agree — that no good labour relations purposes are served or achieved by this automatic filing. He may argue that it's not automatic filing, that somebody has to apply. Well, you can bet that the employers are going to apply in virtually every case. Fortunately, there are still quite a few enlightened employers out there, but not many in some of these industries that we're talking about.

[Mrs. Gran in the chair.]

[ Page 1522 ]

I want to read the other side of this case — from an employer's point of view. And this is the Muckamuck Restaurant case. Members from Vancouver in particular will remember the Muckamuck Restaurant; many of us enjoyed eating in that restaurant. It's a famous matter in labour relations in B.C. history. The board said:

"In this decision, the board fashioned a remedy for the unfair labour practices found to have been committed by the employer; a significant consideration was the fact that the employer had gone out of business as the result of 'losing' this labour dispute."

Here is a case where union members could have requested that the unfair labour practice declaration be filed. The board argued that that should not be filed. It's a page and a half so I won't read it all, but I'll take a short sentence or two out of the middle:

"...the employer had essentially gone out of business as the result of 'losing' this dispute. That being so, an order that it now provide the union with many thousands of dollars of compensation would give the remedy a distinctly penal favour. The board's remedial power did not, of course, extend to the imposition of penalties."

So in this case, if a union member wanted to have penalties achieved on its former employer — technically still its employer — it could have gone under the new law to the Industrial Relations Council, asked that that order be filed, the employer would then have been in contempt of court, and there would then have been a penal flavour to the resolution. How does that assist industrial relations in this province? What the board is saying in both of these kinds of cases — and I have others, and if necessary I'll use them — is that the law of contempt of court, or the law as administered by the Supreme Court, is not appropriate in industrial relations. What you need in a situation where you have an activity that is illegal, whether it is Muckamuck running muckamuck through the collective agreement....

Interjections.

AN HON. MEMBER: Amok.

MR. GABELMANN: Amok. Whether you have the employer violating the collective agreement or whether you have the union violating the collective agreement, as was apparently the case in both of these instances — Muckamuck Restaurant, B.C. Transit — the board suggested, and every practitioner of labour relations that I have ever heard would agree, that what is important in that situation is that a resolution be achieved while maintaining the best possible relationship between the parties, because normally — not in Muckamuck, but normally — they have to continue to live with each other and to work together.

So how do you do that? You do that by having a dispute mechanism — contract dispute or unfair labour practices or whatever else it might happen to be — that is outside the courts, that is discretionary, that allows for consultation and for saving face, and that allows for good industrial relations. That is now no longer possible. Under the new law — and I've said it already, but just to summarize this point, and then I'll let another member pick it up from there, unless the minister wants to agree that the argument is compelling and he's been thinking about this issue anyway, over the last few weeks, and wants to make further amendments.... If that's the case we'll move on to the next section. But if he doesn't want to agree with that, I just want to say in conclusion that here are two cases where industrial relations were well served by not having the courts involved, and where if the courts had been involved the relationship between the parties, in terms of MTOC — Metro Transit Operating Company — and the ICTU, would have been inflamed to a point where their continued relationship would have been impaired as a result of their act becoming contempt hours after an order had been made; and on the other hand, from the employers' perspective, a situation where an employer could have been fined thousands upon thousands of dollars for contempt of court for violating an unfair labour practices charge. The discretion allowed to the Labour Board in those kinds of cases and many others is appropriate.

If they feel that their order is not being followed, they have a discretion: they can file. No matter how badly I feel about the Industrial Relations Council, no matter how badly I feel about all of the additional powers it now will hold, which is a subject of a later debate, I think the argument is overwhelming and compelling that they should have that discretionary right to say no, we will not file this order. Even if they decide a day or two days later, whatever, that they will file it, they should have the right to say no, it will not be filed. That right does not now exist with the IRC.

HON. L. HANSON: I certainly understand the point that my critic has made, and I must say that I do appreciate the tenor of the debate. I do understand what he's saying. I would assure the member that in the discussions that went on among the people that I was associated with in the drafting of this, that was a concern that was considered. We felt very seriously that the integrity of the board and its decision-making process should be protected to the degree that those orders carried the importance of a court order, as it relates to its enforcement. While I understand the member's concerns, I did decide that that was the most appropriate approach to take; but I would say that certainly that is an area that would be watched very closely as to its operation. But that was considered. We did consider the arguments that the member advances.

MR. MILLER: Would the minister agree with the statement that it's preferable that labour relations disputes be resolved at the earliest stage? For example, my philosophy as a shop steward was, to the foreman: "If you and I can solve it here, we've done a service to everybody, rather than sending it through the process." Would the minister agree — we're talking now about the board, or what will be the council that it's preferable that matters be resolved at that level?

HON. L. HANSON: I think I would even go further. I think that it's preferable that matters be settled before they ever reach the board by the two individual parties that have the dispute. I don't think that the member would argue that at times there just isn't a resolution, and there is a requirement for a legally constituted body to make a decision, listening to all of the facts. But I would suggest that the people who are making those decisions will be very aware that the decisions they are making are in effect court orders.

MR. MILLER: If the minister agrees — and I take that lengthy answer to really be agreement with my statement — that it's preferable that matters be resolved at the board level, why would you possibly want to introduce an amendment

[ Page 1523 ]

that would allow either party in dispute to frustrate that process? Because that's exactly what would happen.

Rather than the issue being settled at the board level, either party to the dispute, whether it's union or company, can say to the board,"We want that filed in the Supreme Court," and therefore it becomes a matter for the courts.

Either side can frustrate the board resolving the dispute. Why then would you want to include that in there? You're saying you want to put it in there because the parties would know that a decision of the board is backed up by the courts.

But the board surely is in a better position to determine when they feel it's necessary that the decision be backed up by the courts. When one party or the other is not complying, then the board has the power, and the parties know that. But as it stands, your amendment would, in fact, frustrate the very process that you say is preferable.

Would the minister respond to that?

HON. L. HANSON: You know, I don't agree with that assumption. First of all, as I understand the situation, the parties try to resolve their differences, and not being able to resolve their differences, as a last resort — because they obviously haven't been able to resolve it through negotiations between the two — they appeal to the council for a decision, giving the council all of the facts. I know that there is a provision for an interim order giving both parties the chance to be heard, and that interim order would effectively become a court order in the same manner.

But by the same token, the interim order is discretional on the part of the council, and I am sure the council, realizing the importance of the order that they are making, will take all of those facts into consideration before a decision is made to issue an interim order or another order, because the division of the council that makes these decisions is a court that they appeal to when they are not able to resolve their own dif ferences. They go there with an issue as it relates to their difference between the two parties.

MR. MILLER: Mr. Minister, going back to the decisions of December 3, 1982, I'll just read part of the reasons:

"To date, the board has refrained from using its authority under section 30 of the Code for any purpose other than securing compliance with its orders. The B.C. Supreme Court has expressed a similar view of its role under section 30. The application of the complainant was not supported by a persuasive argument that the board should ignore the policies that had been developed in relation to section 30 of the Code."

I repeat that by allowing either party to request — and that therefore becoming a mandatory request — that an order of the board be filed in the court, the board has lost part of its ability to resolve disputes.

I mean, this is not an argument that pits me as being only on the side of labour, or someone else only on the side of companies; this is an argument about the mechanism that's in place to resolve disputes.

Surely the minister can see what I am saying, that by allowing either party to frustrate the process by demanding that the order be filed, you've taken away the ability of the board to actually do its job.

[3:45]

HON. L. HANSON: I don't agree with that. I think that he board, before it makes an order, has all sorts of flexibility to attempt to resolve the dispute between the two parties.

Again, the orders of the board that are required to be filed with the court are simply a compliance measure, and when he board reaches the decision that it is necessary to issue an order, then we believe that order should be obeyed.

MR. CLARK: I think the minister is incorrect in that statement, because he is saying when the board "considers" that there is an option to enforce it. That's not what this section says. It says: "It shall be filed on an application by any party." Isn't that correct?

HON. L. HANSON: No, I think that's a misunderstandng. I said that when the board makes a decision to make an order.

MR. CLARK: Well, I don't want to belabour the point, because there is clearly a simple.... This is a very important section, and these are very simple arguments, and the minister seems to disagree. Consistently labour legislation in Canada and British Columbia has been designed to remove those kinds of matters from the courts, and in a series of amendments, this one is the major one. It simply allows parties to seek relief from the courts, and there is no discretion on the part of labour relations practitioners or the adjudicator, in this case the Industrial Relations Council.

It seems to me to be an extremely backward step, because what we have seen is that there is discretion now by the board, and that discretion is very rarely exercised because of the consequences. What labour relations purpose is served by allowing employers, for example, to sue their employees for damages? If a pulp mill has a wildcat on the basis of strongly felt feelings — obviously, wildcats don't just occur — on the part of the employees, and if it allows that employer to sue the trade union for that wildcat, which this bill does — this removes any discretion on the part of the board to simply allow that — then how does that improve the relationship between employees and employers? How does that assist the parties in the future to enjoy a meaningful relationship in terms of the kind of day-to-day things that take place?

What it does is that it hammers the trade union, so therefore it impacts on the trade union. It may, for a time, limit wildcat strikes. It may make them not happen. But the wildcat strikes happen for a reason. They happen because of pent-up frustration. What this will do, if it caps it now because of the threat of being sued, is that eventually it will just blow up anyway. Then when the employer goes to court and sues, it will flare up again and we're back to the same ituation we were back in before, where the courts are issuing orders and suing unions and making them stick; and it just ours the whole industrial relations climate that took us years, after the late sixties and early seventies, to get out of to some extent. So it drags more and more of these kinds of things into he court.

The minister is appointing the chief executive officer, if you will, of this operation. He is appointing Mr. Peck. He is making government appointments. He has designed the law. He has designed what we think is really not a very good law at all, in fact terrible. Then he is saying that even though he is in complete control of this operation — he is making all of the appointments — he is going to remove any discretion on the part of his appointments and on the part of this organization to

[ Page 1524 ]

not allow an employer to seek relief in the courts; he is going to remove any discretion from the participants, from the adjudicators of the dispute, to allow that employer to seek relief in the court. It will be used extensively, as consistently employers have applied for the right to go to court, and most of the time, I think probably about 90 percent of the time, they are refused by the Labour Relations Board.

This opens the door and removes the discretion from an act that already was clearly stacked against trade unions in virtually every clause. Already the minister has made all his appointments, and yet even though they are all his appointments, even though the act is clearly structured in this manner, still that discretion is removed.

I think if you look at it historically, the courts are not good adjudicators of labour relations matters. What they do is effectively punitive. They enforce decisions of the Labour Board, in this case, in a punitive manner, because usually it is to seek damages, or those kinds of orders. Any order is enforceable by the court now. I think consistently with this kind of clause you are going to see more and more the court involved in labour relations, and you are going to see clearly more disruption because of it. It really runs counter to the trend of labour relations all across North America, and clearly the major legislative initiative in this province, the Labour Code of 1973. This completely reverses the trend of every other jurisdiction in a series of amendments, like weakening the privative clause of the board; like the next section — not to get into it — that limits the jurisdiction of the board.

All of these things combined, particularly this section that removes any discretion, will have the impact of the courts becoming more and more involved in labour relations. That clearly is not a trend anywhere else, it clearly has not worked historically, and it doesn't make any sense at all.

MR. SIHOTA: Actually, Madam Chairman, I was hoping the minister would respond to those comments by the second member for Vancouver East.

Let me ask the minister this question. Responding to what the member for North Island (Mr. Gabelmann) had to say after his opening comments with respect to this section, the minister, if I heard him correctly, said that he wanted to preserve the integrity of the IRC.

As a function of that, the minister, as I understood it, decided to have this section read in the way that it does. It struck me as a somewhat unusual comment, in that it would seem to me that the council itself is the best arbitrator of its integrity. If it has concerns about its own credibility, if it has concerns about the extent to which its orders are going to be complied with, and if it has concerns about the amount of spine it is seen to have on these types of matters, then it ought clearly to be the one that decides whether or not it has a concern, and hence decides to green-light an application to the Supreme Court or to red-light it, if it sees other more compelling reasons. The question to the minister is this: does he not agree that the council itself is best able to determine and adjudicate on matters affecting its own integrity?

HON. L. HANSON: Well, Madam Chairman, I do agree, as a matter of fact, but I believe that that integrity or that decision-making process lies at the level where the board makes the order. They know the results of making an order. All of the facts of the case are considered, and all their abilities are considered, before they in fact make that order, and that's where I feel the discretionary powers should lie.

MR. SIHOTA: Well, that invites all sorts of comments, and I'm sort of deciding which one I want to pick on first. But I'll take it from this angle: if one is to embrace the minister's interpretation and to say that discretion ought to be made before the order is granted, the council would in all likelihood be far more hesitant about making those orders, because it knows that one can proceed to the courts with that order, as opposed to knowing that it has discretion afterwards. Does the minister not agree that the net effect of this, then, would be to have the council become far more hesitant?

HON. L. HANSON: No, I don't think that's the case at all, Madam Chairman. I believe that the IRC adjudication division has confidence in their ability to make those sorts of decisions, and I think they're going to take their responsibilities very seriously. You know, something that I sort of don't agree with.... I guess it's obvious that the philosophy of the two sides is quite different, but I don't think we can say that there aren't an awful lot of intelligent people out there, both on the employer and the employee side.... that the requirement to file an order, or the requests to file an order, is going to be rampant. I think that will be treated very rationally and very responsibly, and I think the board will treat its responsibilities very responsibly. I think that's a confidence-builder, if you will, as opposed to a deterrent.

MR. SIHOTA: Well, if the minister thinks that the board is quite capable of making rational decisions and operating in a rational way, and if he's quite sure of the fact that the board will operate in a competent way, then why not provide them with the ability to exercise that type of rationale and discretion prior to providing a green light to go to the Supreme Court?

HON. L. HANSON: Obviously we have a difference of opinion. We feel again that the IRC will act responsibly. We don't feel that we're taking away any of the discretionary authority that should responsibly lie with them. I think what we're trying to do is to underline the importance we place on compliance with decisions of that adjudication board.

MR. LOVICK: Madam Chairman, I guess the question is, if I might just pursue the point started by my colleague.... If indeed we are trying to demonstrate our faith in the council, if indeed we believe in the integrity of that body, then why are we in effect creating a structure that is automatically in place above and beyond that council to start with? In other words, we're removing the discretion of the council to decide what shall be referred upward. We're taking that away from the council, in effect, by saying that any of these parties can make that request, and it will be granted.

HON. L. HANSON: Madam Chairman, I can do nothing but repeat that we definitely have a difference in philosophy. We feel that making the effectiveness of a council order that of a court order will in fact reinforce their authority, and also the integrity of their decisions.

MR. LOVICK: I thank the minister for his response to the question. I am not going to repeat the question. Instead, I am going to ask a question suggested by a comment made earlier about this particular issue. The minister said a while ago, in response to my colleague from North Island on this very question, that this would be — and I believe I am quoting the

[ Page 1525 ]

minister's statement — "an area to be watched very closely." What does that mean? What kinds of remedies are we talking about? What is the procedure of watching closely? I don't understand that.

[4:00]

HON. L. HANSON: Well, I think there is no question that the monitoring of the process that we are putting in place will go on by me and my deputy minister. I was suggesting that the critic, the member for North Island, had raised.... That was a discussion that we did hold. We did recognize those, but have decided to advance the bill the way it is, if you understand. In other words, I am trying to say that we didn't do it unaware of some of the concerns that have been raised. But the policy decision.... Obviously we disagree on the philosophy.

MR. LOVICK: If the minister is saying that yes indeed, he and his ministry officials will be watching closely, the question is: what can he do by watching activities of the Supreme Court? Once you have given over that power to the Supreme Court, you have effectively washed your hands of it. What are you going to do? Are you then going to say: "Well, we don't like the way the court is behaving. Therefore we are going to get involved, and suggest to the court that it will receive a slap on the wrist" — or something? That's the point. We are suggesting that by, in effect, giving up this, if you like, discretionary power, the minister has effectively backed himself and his department into a corner. Don't you recognize that that is the predicament?

HON. L. HANSON: I am not suggesting that when we are monitoring something, we are monitoring the actions of the Supreme Court. I am suggesting that it is a responsibility of the minister in any portfolio, as well as his deputy, to monitor the working of different legislation that is put in place. I am not suggesting a monitoring of the Supreme Court and its actions. I am simply suggesting that as minister I have a responsibility to monitor everything that goes on within the ministry.

MR. LOVICK: A direct question. Given what discretionary power is now removed and what role the Supreme Court now plays in this, what then will the minister and his staff be monitoring under the provisions of this section? What will be left to monitor?

HON. L. HANSON: I guess I just have to repeat that there is a responsibility in any ministry to monitor everything that goes on within its purview. I think that if the member is looking for the answer, there is a requirement to monitor the actions of the board, of the commissioner, of all those things. That is an understood thing that happens in any commission. I am not embarrassed by the fact that I continue to monitor the situation in the Workers' Compensation Board, the Insurance Corporation of British Columbia and so on. But that is not to say that it isn't a process with everything that goes on in the ministry.

MR. SIHOTA: I don't understand what the minister is talking about when it comes to monitoring. I mean, who is he trying to fool? He is trying to tell us that he is going to monitor something that is outside his jurisdiction, namely the courts. Do we realistically expect the minister to sit there and monitor every labour relations type of decision that goes through the courts, and then decide at some time in the future that it would be appropriate to make amendments to section 20? Quite frankly, I don't buy that line. If the minister is really concerned about monitoring and watching and making sure that appropriate matters are dealt with appropriately by the courts and so on, then he ought to put a control mechanism in the hands of the council, so it can decide as a monitoring agency within his jurisdiction whether or not matters ought to be allowed to go to court. The minister knows, and I know, and his advisers know, that the implications of allowing this section to stand and allowing these matters to go to court carte blanche are enormous, because the courts possess enormous powers and they can do all sorts of things.

Once you've got a Supreme Court order in your hand, you can take all sorts of action that you want to take to execute on that order. There's a whole area of remedies that opens up. The powers are enormous, and it shouldn't be a carte blanche approval on to the next step. We all know, and the minister knows, that the history of these types of matters has been that there's been appreciation of the fact that labour relations matters are specialty matters, that they're best left in the hands of a tribunal known as the Labour Relations Board or the council that have expertise on labour relations matters. They're the ones who can make the decisions. The idea is to keep it out of the courts, hence privative clauses and hence the type of power that used to be in the hands of the Labour Relations Board to limit the cases that go before the courts.

The courts didn't want them. The courts didn't want a labour relations mess on their hands. The courts didn't want them, because at times they lacked the expertise to deal with labour relations matters. That's why we moved in this province to a form of tribunals; that's why we should stay that way, and that's why we should try to give those tribunals as much power as is necessary to make fair decisions on matters of labour relations.

The next comment is going to launch me into a general diatribe on the act, so I won't make that comment. But I think it stands to reason what I was going to say, in any event, in terms of how the act fails on that point. But the fact of the matter is that we've created specialty boards to deal with these types of matters, and it makes sense to allow those specialty boards to decide when it is that the escape hatch should be opened to allow matters before it to go before a higher level. It should be the board or the council — to use the language of this legislation — that has its hands on that escape hatch, so it can open it up and allow certain matters to proceed and others not.

I'll tell you why that ought to be the case, and I'll just quote from section 18 of this act. Section 18 says that one of the objectives is: "Securing and maintaining industrial peace and furthering harmonious relations between employers and employees." That's clearly the intent of the legislation, as far as the minister sees it, and we won't get into an argument as to whether or not it achieves that or not, whether it maintains a balanced field or not. The point is that if that's your intention, then you ought to give this board some discretion as to the matters that may go to the courts. Because in the past, as I understand it, the Labour Relations Board exercised its powers to open that escape hatch and allow matters to go to the courts only when it felt that it could no longer do its job in terms of maintaining harmonious labour relations in the province. You just don't whittle away the jurisdiction and

[ Page 1526 ]

slice it up and allow for ease of the matters to go before the courts, given the history of these types of situations and the history of the Labour Relations Act.

It's profoundly inane, in my view, to have injected section 20 in the mandatory language that's contained. It's totally oblivious to the history of labour relations and the whole concept that we've embraced in this country of having specialty tribunals. It's totally crazy, and I'm a little bit amazed that the minister himself doesn't understand that. But so much for those biting words. Maybe it's because I have been in the House for two or three days and have allowed these matters to simmer in my mind.

Let me just ask the minister a very simple question. Is it not true that this section was drafted at the behest of employers who were upset over the powers of the Labour Relations Board as they exist now, before the amendment? Is it not true that the employers requested this? Yes or no.

The minister says no. Can I ask the minister to indicate to me which employee organizations requested this change?

HON. L. HANSON: The number of briefs is sort of staggering in its total. The discussion that went on with myself and my people involved certainly was, you know, taking into consideration all of the concerns that the members have issued, and I think that government has a responsibility to provide legislation. I don't think there's a requirement that every piece of legislation that comes forward is as a result of a request, but there were a number of individual requests, and quite frankly, maybe I can find a brief for the member that would suggest who suggested this, but it's very difficult to remember every individual one.

MR. SIHOTA: Well, that's garbage. Let me ask another question then. Did the minister discuss with the Supreme Court of British Columbia as to whether or not it wanted this type of an amendment?

HON. L. HANSON: Could you repeat that?

MR. SIHOTA: Did the minister discuss this with anybody — for example, the Chief Justice of the Supreme Court of the province of British Columbia? Did you ask them what they thought of this section; if they wanted to have the jurisdiction to deal with these types of labour matters? Did you consult with them?

HON. L. HANSON: I have some difficulty in relating the concern of the member that we should address the Supreme Court when we're providing legislation. All we're saying here is that the labour matters which are dealt with by the adjudication division of the new council...that when those orders are issued, they will be filed with the Supreme Court. We're not suggesting that the courts have a working role in labour relations; we're simply suggesting that the authority of the act under the Labour Relations Council will in fact become an order of the Supreme Court for purposes of not only its impact, but its enforcement.

MR. SIHOTA: I'll put the minister on notice. When we get to later sections, I'll bring out that quote from the Blues in terms of what the minister has had to say now of an increased role within the Supreme Court on labour relations matters. If the minister is true to his words, I think it will come back to haunt him later on.

This legislation is a radical departure from what we've got right now, introduced by a radical Premier and a minister who obviously strives to be as radical in his approach. What you're doing by virtue of this section is giving the courts greater powers in these types of matters, greater room to play with these types of matters, without asking whether or not they want to enter into the playing field — whether they want to get involved in labour relations matters. It seems to me somewhat obtuse not to talk to the courts about it. Given the history in this province of the courts wanting to get out of these kinds of situations, it's strange indeed that you would involve the courts more directly in these types of matters. But fine, I'll accept the minister's response at this stage, and maybe come back when we get to another section.

The existing Code was debated in this House about 12 years ago, and there's been no change to this provision over the last 12 years recognizing that the Labour Relations Board ought to have these powers. What has happened since October 22, 1986 to persuade the government that the board's discretion should be removed? What decisions have come down which have caused all sorts of concern to bring about this amendment? What philosophical change has happened within the government? It's the same party that was in power over the last few years and had the opportunity to make changes. What's happened that would warrant this type of an intrusion and a change, if I'm wrong on the matter of employers not requesting it? Can the minister point to any cases, any decisions of the board that caused him concern sufficient to bring about this type of radical change?

Interjection.

MR. SIHOTA: The minister says no, there haven't been any cases. Will the minister explain then if...?

HON. L. HANSON: I'm not going to respond.

[4:15]

MR. SIHOTA: The minister chooses not to respond. Perhaps he can explain why he doesn't want to respond.

Interjection.

MR. SIHOTA: The member for Richmond is quite correct. It was a good try.

You know, it's absolutely frustrating. You're sitting here, Mr. Minister, proposing changes to legislation, and you're not adequately explaining the reasoning behind it. That's why you're inviting this type of frustrated response from this side of the House. I want you to understand that. It's not a case of our wanting to continue delaying the passage of this section.

Interjection.

MR. SIHOTA: I'm sure all of you would love to believe that. There are members on the other side of the House who say: "You know, it's not our intention to deunionize the province." Some of us have actually said that we believe you there, and I wish you would believe me on this provision. It makes for great rumour and gossip and innuendo to suggest that the members of the NDP want to rag the puck, so to speak, on this stuff. Well, that's not the case; we just want some clear answers. What prompted these changes, Mr. Minister?

[ Page 1527 ]

Well, if the minister doesn't want to answer the question, then I'll keep on talking and maybe we will rag the puck a bit, if that's what he wants. But I think the people of this province deserve an answer. You say, Mr. Minister, that you are concerned about the integrity of the board. Well, could you tell the House what made you adopt that concern about the integrity of the board? Did the board come to you and say.. "We're worried about our own integrity, and therefore we want this mandatory provision"? Did you introduce this because of the board coming to you?

The minister doesn't want to answer that question either. If it wasn't employers and if it wasn't the board and if it wasn't the courts and if it wasn't trade unions that asked for this section, who did? Did the minister want it, and if so, could the minister explain why he wanted this change?

HON. L. HANSON: First of all, to the member opposite let me point out that under the Human Rights Act, which does set a bit of a precedent, where an order is made under subsection (2) or (3) or section 4(d), the council or the person who was discriminated against and in whose favour the order is made may file a certified copy of the order with the Supreme Court or with the county court, etc.

So I think there are some precedents. But by the same token, we obviously disagree with the member on the other side on the philosophy behind reinforcing the order of the IRC as with the courts. We on this side feel — and I've discussed it with the cabinet and the members in caucus and my staff members — that the philosophy of reinforcing the orders of the council by the application, or at least by the filing in the Supreme Court, is a good philosophy. We think that it reinforces that, and we think that it preserves the integrity of those decisions as the adjudication division comes up with them.

MR. SIHOTA: The human rights legislation is a good example, but we're comparing apples and oranges there. Let me say right off the bat that I think it's a good idea for the government to allow for these orders to be made law and to be applied in the courts of the province. There is nothing wrong with that philosophy at all, except that perhaps the jurisdiction — who is making the order — ought to have the discretion to pass judgment on whether or not these provisions ought to be filed. I think that's the difference of opinion on this side of the House.

Madam Chairman, I notice that the minister is out of the House, so maybe for the record let me make the following comments, because I dare say that if the minister is unwilling to respond to three-quarters of my questions, I hate to guess whether or not anybody else in the House is willing to take on the matter as well.

AN HON. MEMBER: It's the quality of the questions.

MR. SIHOTA: The member makes a comment about the quality of questions. I don't think there is anything wrong with asking: whom did you consult? Did you consult employer groups? Did they want it? No. Did you consult trade unions? Did they want it? No.

MR. S.D. SMITH: Is it normal to ask judges?

MR. SIHOTA: The second member for Kamloops says: is it normal to ask judges? I am saying that this legislation is a radical departure from what we had before. The member knows that. He also knows that the courts have said in the past that they don't want to deal with labour matters, that they prefer that some specialty board deal with it; and now this amendment wants to give some powers back to the courts. A quick phone call to the Chief Justice I am sure would have given an answer the minister didn't want to hear. Maybe that's why there was no consultation. But fair enough; I'll accept what the second member for Kamloops has to say in fairness and say okay, maybe it's not wholly appropriate to go to the courts and ask them: "Well, what do you think of this type of change; what do you think of us giving you more power?"

I'll concede that, but surely it makes sense that somebody be consulted. Surely it makes sense that somebody must have requested this section. If the minister is to be believed that the employers didn't, then the question still remains: is it employees or trade unions or organizations or cabinet or caucus? Who was it that asked for this change? I'll withdraw my comment gladly on the matter of the Supreme Court, because I think the second member for Kamloops will understand as well as I do that it is a radical departure. If he thinks it's improper to ask judges, well, that's fine; I'm not going to argue that point and I'll concede that.

I can make all sorts of comments about this government and its playing around with courts, but as I wait for the Minister of Labour to come back into the House, Madam Chairman, let me say this. In this legislation this government is putting its faith in this new Industrial Relations Council on a number of grounds. It's saying to it, as it stands right now, that people attached to this council can make decisions to determine what is not in the public interest. It's saying to it that you can make decisions about the defining of a term such as "competitive market economy." And it's placing all sorts of discretionary powers with respect to defining those types of words and phrases; it's giving to it all sorts of discretionary powers in terms of making decisions; on the other hand, it will not give it a discretionary power to further cool down a heated dispute.

In the past — if you read the decisions of the Labour Relations Board — when exercising its discretionary powers, the Labour Relations Board has often said that it does not think that a particular order ought to go to the Supreme Court and be registered with the Supreme Court. It said this because it felt that it was timely for it to make an order in the first place. It said this because it was confident that there would be compliance with the order. Thirdly, it reserved power with respect to the Supreme Court — to answer the member who raised the issue. It recognized that events changed between the granting of the order and its filing in the Supreme Court and that certain events can be deemed to inflame the situation. As a consequence of that, it has wanted to have the discretionary power, and there's absolutely nothing wrong with a board being allowed a second sober look. I may say that this government would be well advised to have a sober second look on this legislation and not go any further.

Interjection.

MR. SIHOTA: That's true. It would be nice for the government to demonstrate a level of sobriety on this.

Interjection.

[ Page 1528 ]

MR. SIHOTA: Here I am again stuck waiting for the minister to return, wanting to ask him questions, but I understand that he is otherwise engaged, as my friend has pointed out. So I'll wait for the minister to come back, and I'll look forward to comments from the other side to see if anybody else wants to defend this section and explain to us on this side of the House why discretion ought to be removed from the order. I don't know where the first member for Vancouver South (Mr. R. Fraser) is, but usually he's pretty good at doing it.

HON. MR. RICHMOND: The people over there sound so surprised that dear old dad's going to get up and say something. I did want to make the observation, regarding the comments I've heard from that member for Esquimalt–Port Renfrew since I've been here, that it really made little difference if the minister was here or not, because — talk about tedious and repetitious, Madam Chairman — in the 20 minutes I've been in the House, I've heard him just repeat the same things over and over and over. I do promise.... I don't have to, now that the minister is back, but I would gladly take any questions on notice for the minister so that he can take a break.

But I do have some comments here on some of the background material that I find interesting, and I think, Madam Chairman, that it should probably be read into the record for purposes of balancing the scales on this debate. The LRB currently has a discretion to refuse to file its decisions or orders in the Supreme Court registry. This amendment will require the council to file a decision or order in the Supreme Court registry if someone requests it do so. The implication of filing an order in the Supreme Court registry is that the order becomes a court order and can be enforced just as a Supreme Court order can be enforced. This means that if someone disobeys the order, they can be cited for contempt of court — for some reason, the member for Esquimalt–Port Renfrew doesn't like that. Fines and/or a jail term can result.

For example, an employer whose union employees have illegally walked out, and who has obtained a council decision declaring the strike to be illegal and ordering the employees back to work, will now be able to require that the council file its decision in the Supreme Court registry. Council will not be able to refuse if someone makes the request. Once council's decision is filed in the registry, it can be enforced as though it were a court order. Thus, if an employee continues to defy the order and refuses to go back to work, or if a trade union officer encourages the members to defy the order, they leave themselves open to the consequences of a Supreme Court judge ordering fines or a jail term. I think that it's very important, Madam Chairman, that people understand just what this does, especially in light of some of the remarks that have been made in the last few days regarding Bill 19.

Similarly, if council had ordered an employer to reinstate an employee in his job and the employer refused to do so — this is for the protection of the employee — the employee could request the council to file its order in the Supreme Court registry. Council could not refuse. If the employer continued to disobey the decision even after it was filed in the registry, he would be in contempt of court and subject to the same consequences.

Now I ask the member for Esquimalt–Port Renfrew to tell me what is so wrong with that when it provides protection for both the employer and the employee, so that people must obey what the council says. I would like the member to tell me what is so wrong with that.

[4:30]

MR. SIHOTA: I want to thank the minister for his question. It's just amazing. I'm going to leave it to my other members here who are also itching to get up and deal with the matter, but I'm going to make a couple of comments.

The minister's worried a little bit about contempt of court. In fact, if anybody right now is showing contempt of court, it's the Attorney-General (Hon. B.R. Smith) with the matter that he's filed before the courts right now — total contempt for the courts. Let me start off by....

MADAM CHAIRMAN: Hon. member, I think perhaps that might not be a proper statement for the House. Would you...?

MR. SIHOTA: Well, going back within the confines of the section and dealing with it....

MADAM CHAIRMAN: But we don't accuse members in the House. I would ask you to withdraw the statement.

MR. SIHOTA: Sorry. I'll withdraw it, Madam Chairman.

This government seems to have a fix on wanting to throw people in jail and a real fix on being able to operate with the heavy-handed instruments that are available to us. It seems to me that those instruments and those powers ought to be used on limited occasions.

Interjections.

MR. SIHOTA: Look, the answer's very simple. This section is in place to expedite intervention by the courts. That's the sole purpose of this section. Nobody is going to stand up here and suggest that contempt of court ought to just be allowed to go by the way. If the board had a concern and felt that its orders were not being complied with, then it can make an order that the matter go to court and an order be made. But at the same time the board used to have the discretionary power to say no and red-light it. It wanted to provide a red light in cases where it was appropriate to allow the situation to cool down for a while, to let the boiling dispute simmer for a while, to allow the parties to talk it out, and as a way of trying to keep the matter outside of the courts. The board recognized, rightfully, that it wasn't appropriate for all these types of matters to automatically go to the courts, so it played a significant role in harmonizing labour relations in this province and played a significant role in cooling things down. So it wasn't an automatic right to go to court. Now what you're doing by this section is you're taking away that discretionary power in the hands of the board. If the board had a hang-up, it would green-light it. If it felt that it was appropriate to cool the situation down, it would red-light it.

I want to ask the minister, in response to his question, what's wrong with discretion? What's wrong with providing the Labour Relations Board with a little bit of discretion? Is he against discretion?

HON. MR. RICHMOND: Nobody on this side of the House, of course, is against discretion at all. But I think if the member had been listening when I quoted, this section is also

[ Page 1529 ]

there for the protection of the employee — the employee who feels he or she has been wrongly treated — not just employers. Any party who deems him or herself to be injured can now request that it be filed with the Supreme Court. Note that although a council decision or order, when filed with the court registry, becomes an order of the court, there is one exception to its status as a court order: no one can appeal it to the B. C. Court of Appeal. That's one thing that should be added.

But of course, Mr. Member, nobody over here is against discretion in these things. This doesn't mean, because this section is in there, that everything that comes before the council is going to be filed in the Supreme Court; that will happen only if someone feels they've been wronged. I think it is time the individual employee in these cases did have some discretion, so that he or she could feel protected and could ask that it be filed with the Supreme Court. Not just big management and big unions have this discretion; now the individual employee will have some discretion.

MR. MILLER: You know, these little breaks that the Minister of Labour takes are quite illustrative. In fact, it seems to me to point out the need for the full cabinet to come in and sit in their places and take part in this clause-by-clause debate, because it is obvious that there is some misunderstanding, at least about how the Labour Code operates now and why this section can in fact be an impediment.

Can the minister not understand that the board having the discretion is in fact a tool that the board can use to make sure that matters are resolved at the board level? If the minister can understand that, then presumably he would be opposed to this clause, because it allows either party, for whatever purpose, to move the matter away from the board, which presumably would try to get the two parties to resolve their differences. It allows either party to move the matter into the courts. That, quite simply, frustrates the board. The very fact that the board has the discretion now is a tool in the board's favour and is in fact an incentive for the parties to resolve the matter at the board level.

You know, simply coming in here and reading the section out doesn't display any understanding of the section or its implications for labour relations matters at the board level. There has to be a deeper understanding of what you are doing. I would like to see the full cabinet here. I would like to see people stand up and take part in this debate, as the Minister of Social Services and Housing has just done, because to me it illustrates one of the fundamental problems we are facing in debating this legislation with this cabinet. Quite frankly, I think there is a lack of understanding.

HON. MR. RICHMOND: Well, Madam Chairman, I don't intend to go on ad nauseam on this, as is done so often from the other side of the House, but it never fails. That member has fallen back on the same line as always over there: if we happen to disagree with their stance, then we simply don't understand. You trot that out every session: "You just don't understand."

MR. MILLER: Prove me wrong.

HON. MR. RICHMOND: You prove me wrong. "You just don't understand," he says. If we happen to disagree, we just don't understand.

Interjection.

HON. MR. RICHMOND: I understand the clause, Mr. Member. I have gone through this bill word by word, as part of the legislative committee and a member of cabinet. I have had it gone over by experts in the labour field, and I think I understand it probably not as well as the Minister of Labour, who has lived with it for a long time, but as well as anyone else in this House.

I resent that being trotted out every time we have a disagreement on the philosophy of the labour bill: that we just don't understand, because we happen to disagree with the way you interpret it. I am telling you that this section provides for discretion, especially on the part of the individual. The individual now has some say in what goes on in a labour dispute, where he or she had precious little before.

MR. LOVICK: Well, there were a number of us on this side of the House who were anxious to get involved in this debate, but clearly enough time has been devoted to it. I am not going to prolong matters unduly, however tempting it might be.

Let me see if I can't just outline for you the concerns. We hear in this clause and, indeed, in many clauses in this bill, as we have tried to demonstrate, the sound of marching feet. And the sound of marching feet is in danger of drowning out the sound of voices.

The predicament here is that once more we have deferred to somebody else to make the decision as a matter of course. We have invited the law courts to become a major participant in the scheme as a matter of course, rather than as — if you'll pardon the pun — a court of last resort. Recognize, once more, that what this does is effectively tell organized labour that we are going to have at our disposal, the state or the authorities or whatever other terminology you care to offer — recourse to the courts, so that we can make matters that ought to be negotiated, that ought to be in the realm of industrial relations, matters that come under the heading of contempt of court.

Recognize that that has the capacity to scare people. Recognize, if I may use the phrase again, that it is analogous to waving the proverbial red flag in front of the proverbial bull. Please, please, please, I would implore this government, finally listen to just that issue, to just that case we have been presenting to you. We're not suggesting that there is any necessary point on the part of government to defer everything to the courts, or something. But recognize how this kind of provision will be construed. Perception matters a great deal in this area, as I am sure members opposite know. Sadly, however, they won't listen to the perceptions we continue to report to them.

My colleagues and I are obviously going to vote against this. We think we have demonstrated to you good reasons for doing so. Sadly, I think you are more concerned with, dare I say, scoring debating points and trying — at least certain members opposite — to personalize issues and say,"That member opposite never listens to me when I speak," and so forth, than you are in listening to the concerns we present. I hope that we will have, if nothing else, a cumulative effect on you, so that in the other sections of the bill that also talk about directly involving the courts you will perhaps be predisposed to listen. Sadly, you have not thus far.

[4:45]

[ Page 1530 ]

Section 20 approved on the following division:

YEAS — 35

NAYS — 14

On section 21.

MR. GABELMANN: Briefly on section 21, I'd like the minister's explanation of the reasons for this change. They may have to do with the privative clause later on, or they may have to do with a view relating to what the courts would do with this clause, and I'm curious if it's either of those or something else.

HON. L. HANSON: We have in this clause limited the power of the council to determine its own jurisdiction by these amendments. It will mean that it may exercise only such powers as are given to it by this statute. The example that I could use is that I think there has been a case where the LRB has ruled that federally regulated employees picketing federal undertakings, by provincially regulated employees.... They've assumed jurisdiction for that. We want to make it amply sure that the jurisdiction of the council is limited to the jurisdictions outlined in this statute.

MR. GABELMANN: Is the minister then saying that it has no connection whatsoever with the privative clause section?

HON. L. HANSON: I couldn't argue that assumption, Madam Chairman. Certainly it does have a relationship to the re-enactment of section 33, and it is a consequential amendment to that section.

MR. MILLER: Could the minister expand on the example he cited? What was the nature of the problem? What was the problem created by the board making the ruling it did? You cited an example when you explained the reason for the amendment; I believe it was the board ruling on a federally regulated company that was being picketed by a provincially regulated union. Could the minister explain what serious problem flowed from that that caused him to bring in the amendment?

HON. L. HANSON: I think the member opposite, my official critic on the labour bill, is right that it is a consequential amendment, as it relates to section 33. But to expand on what I said earlier, we want to make very clear that the jurisdiction of the board remains within the confines explicitly outlined in this statute. I don't know how I can make that much clearer. That's a philosophy that we have adopted in the legislation. How do you want me to make it clearer? I think that's a fairly clear statement of the intent.

MR. MILLER: I'm really not talking philosophy here; I'm seeking the problem that arose. Was it a problem just on paper, or was it an actual problem that had to be resolved by doing this? What happened in this dispute? What was wrong with the board doing what it did, in other words? Not just the fact that they did it — what was really wrong with it? What brought about the need for a change?

HON. L. HANSON: I can express that quite well in one word: there was an inconsistency in some of the jurisdictions that the board had assumed under its ability to determine its own jurisdiction. We as the government have enacted section 21 of the bill to ensure that the jurisdiction is very clear, explicit and simple.

Section 21 approved on division.

On section 22.

MR. GABELMANN: This section gives a party the opportunity as a right to sue for damages under part 5, as I read it. This part of the explanation is really the minister's job, but he hasn't seemed to take responsibility for telling us what the sections mean. I gather the minister can't hear me, and I'm sorry. I'm just suggesting that at the beginning of each of these sections it would be more appropriate if the minister would tell us what it means, but that responsibility seems to have fallen on the opposition's shoulders.

What we're debating here is another important element in the discretion that heretofore was granted to the labour board to effect appropriate, positive and harmonious industrial relations. The council will no longer have the discretion to prohibit lawsuits even when the council feels it is appropriate to prohibit such a lawsuit. Until now, the labour board was able to consider the industrial relations effect of such an activity and make a decision in the best interests of industrial relations. Now, parties will be able, as a matter of right — without approval from the council — to sue for damages, and there would be no discretion at all.

In a sense, I guess we have to repeat the arguments of section 20, and I don't intend to do that. I don't want us to take that long with this stuff. But the same arguments apply. By taking away the power of discretion, the right of discretion on the part of the agency which governs labour relations, and by putting it into another form where the participants have no knowledge of the best way of resolving industrial relations — they're not involved in it at the Supreme Court level — you leave the potential to poison the relationship between employers and their employees.

[Mr. Pelton in the chair.]

Until now, the board has had the opportunity to say no; that that matter will not be referred to the courts or allowed to

[ Page 1531 ]

go to the courts for a suit. The whole purpose of establishing a labour board back in the early 1970s was simply to give an agency outside of the court structure this kind of authority. When you take that authority away from them, you may as well not even bother having that board. The whole purpose of the board in the original Code was to do just this: to prevent these things from ending up in court, which poisoned the relationship between employers and employees. Therefore, we made a conscious decision, by unanimous vote of this Legislature, that we would take away from the courts the right to govern labour relations. Now we're putting it right back in, and in this section giving parties the right to sue without permission.

All that will happen is that labour relations between parties will be poisoned and affected badly, in the way they once were, and the whole justification.... I can understand people not learning from history when the history was 100 years ago, or even 50 years ago. Sometimes people can't learn from history if they didn't live it. But what really baffles me is that we don't seem able to learn from history that most of us lived through, those of us who lived in this province in the 1960s and 1970s. Without going into a long to-do about that, it's unbelievable that we can't learn lessons that are as recent as that. Given even that the Code's new section 27, "Purposes and objects," is not to our liking, the Supreme Court of British Columbia will not be required to make reference to section 27 of the Code when they consider suits for damages. Even with that weakened purposes and objects clause — weakened in the sense of promoting industrial relations — which now provides more rights of individuals, the courts won't be required to consider those questions when considering this particular section and the suits that develop.

[5:00]

For that reason, we oppose this strongly, as we do all of the sections of the amendments which destroy the protection that was built into labour law in this province: protection for parties to have, as the primary objective of their relationship with the authorities, the preservation of good industrial relations whenever possible. That's all out the window. Now the objective is to allow a certain person or a company or a union to make application willy-nilly for suits and whatever else, without any regard to good industrial relations. That's bad in principle and will come to haunt the government.

MR. MILLER: Mr. Chairman, my colleague for North Island talked about history, and I read recently that history comes in rhymes, and what we're debating sounds familiar, because we're going back to a situation. I wonder if the minister would want to offer any further argument in opposition to what we're saying here. Certainly it's not a philosophical debate in terms of a political belief, but rather a philosophical debate about the manner in which we're approaching this particular issue. In other words, is it preferable or advisable to have more of these cases resolved in the court, or is it as a matter of philosophy preferable that we remove them from the courts as much as possible and force the parties to really resolve their differences through the mechanisms we set up, whether it's the Labour Code and the board, or the council that's set out under the amendments that the minister is bringing in? I think that is an important question.

Certainly that debate has occurred in other jurisdictions. For example, I believe the Family Relations Act recognizes that quite often the situations that occur with respect to the differences in the parties are not best resolved in a court.

There are other mechanisms to resolve those kinds of issues. Certainly that was a fundamental principle, if you like — part of the foundation, indeed — of the Labour Code. It seems that we are straying from that. Therefore I do think it behooves the minister to at least discuss that in this House, so that not only this side of the House but members of the public may be better informed about the government's feeling here.

HON. L. HANSON: Mr. Chairman, we had in some of the presentations examples of difficulties, and I'll just cite one of them. There was a hotel that was not in any way involved in a particular labour dispute, and they became the victim of illegal picketing. The hotel suffered very severe losses, because the picketing effectively stopped their customers from coming in. The LRB refused to allow the hotel to go to court to sue to recover damages, and the losses eventually forced the hotel completely out of business.

There's no question that for centuries it was almost impossible — certainly very difficult — to sue the Crown. In modern times I think the trend is that nobody should be immune from actions in the courts, if they so desire.

I'd also like to point out to the opposition that before a lawsuit can take place under this section, the council must have decided that section 5 is in fact contravened. I think there's a test there. We feel — and I certainly subscribe to that — that nobody should be denied access to justice through the court system as a consequence of an action that is determined by an administrative tribunal to be illegal,

MR. GABELMANN: The problem with the minister reading his notes is that the notes sometimes — I guess not always necessarily; obviously not always — are pre-written, and they don't take into account the comments that have been made. It's frustrating. We know that it's only part 5 of the act. We know that there has to be an order of the board or in the future a council, so for the minister to make that statement is just absurd.

What we're talking about is the principle of the change, not the existing law or the laws that will be in the future in respect of the process, except the one point where now, when a greater industrial relations purpose would be achieved by denying permission to sue, that greater industrial relations purpose cannot be achieved. And that should be the purpose of labour legislation.

We are not talking about criminal activity that may take place. We are not even talking about contraventions of other sections of the Code. We are only talking about part 5 of the Code. That is the only section we are talking about, and it relates to questions that pertain to the maintenance of decent, sound and harmonious industrial relations. That discretion is gone, and that is all we are talking about.

For the minister to try and tell us what the law is.... We know. It gets a bit frustrating not to have the purposes of the change explained. The minister did explain that some unidentified hotel — or if it was identified, I missed it — suffered some damages to the third party, and that the board ruled that the suit couldn't take place in that particular case. But the minister hasn't read the judgment in that particular issue as to why the board suggested no suit should take place. I looked through the list of judgments I have here, and I don't happen to have that one, unfortunately. But if the minister could read the judgment made by the Labour Relations Board, as to why they refused permission to sue in that case, and could persuade this House that that was an inappropriate

[ Page 1532 ]

decision, and for that reason the discretion should be taken away, and could demonstrate that this was not the only time that happened, then perhaps the argument would be persuasive.

What were the arguments made by the board in its decision to deny a suit in that case? Were they good ones or bad ones?

HON. L. HANSON: In fact, I don't have that decision in front of me, but I would certainly be prepared to get a copy for the critic.

I think there is a very basic difference in philosophy here. We feel and I feel — and I think the members of this side and, I suggest, a number of the public feel — that when in fact there has been an illegal action, there certainly is a knowledgeable board, a tribunal, to make a decision that there has been an illegal action. We feel it is only fair and reasonable that the person or the entity or whatever it may be that has suffered as a result of that legal action should have a fair and reasonable chance for redress through the court system.

It is a philosophy that I certainly subscribe to and that I am sure a number of the members subscribe to. But I guess that if there is a difference of opinion as to whether that right should be extended to people, then we have a difference of opinion. But I certainly believe that it is an approach. I understand what the member is saying: that the rights of the individual for redress should be denied in some cases where it is harmful to labour relations to seek redress through the courts. I don't agree with that. I think that opportunity should be there for the person to seek that redress.

MR. GABELMANN: Mr. Chairman, this is as good an illustration of the differences in approach — philosophy is perhaps an appropriate word; a bit strong in this case, but let's accept that — of opinion, of philosophy, on this legislation.

The Minister of Labour is saying that the greater good of industrial relations should be subjugated to the right of an individual to sue if a so-determined illegal act has taken place. This side of the House says that there should be a discretionary power on the part of the adjudicating agency, in this case the Industrial Relations Council, as to whether or not industrial relations will be so impaired by the suit for damages taking place that it....

You get tired after a while, and you lose your train of thought. I just want to start that again.

The minister is saying that the right of the individual to sue is greater than the need to preserve industrial relations peace in British Columbia. We are saying that industrial relations peace is of such importance that the Industrial Relations Council should be given the discretion to make a decision about whether or not a suit should take place. That is, I think, the simple distinction between us on this issue.

What flows from that simple delineation of viewpoint? What flows is that the Minister of Labour, in enacting labour legislation, does not have as a paramount concern on his mind the improvement of industrial relations, or the preservation of a good relationship between the parties. He does not have that on the top of his agenda. It is not a priority with the minister.

The pursuit of harmonious labour relations is number two, at best, on the minister's agenda. Number one is the right of any offended party who has had an illegal act affect him, or her, or it, to take action. That right is paramount and supersedes the need to have effective, harmonious, productive and peaceful industrial relations in this province. The minister is more concerned about denying that discretion than he is about the productivity of the workforce. Because the effect of that kind of suit is to poison relations. When workers are angry on the job, angry at their employer, what do they do? Do you think they step up production and work more effectively and more efficiently? They don't. Machines get broken. Production slips. Quality falls. It's straightforward. Why, in the auto industry, are Mondays and Fridays such heavy days of absenteeism? Because of the nature of the work, in that case.

Workers have ways of dealing with situations, which are not very good for any of us. And mark my words, they will deal with situations in ways that are not useful for our economy and not useful for the relationships between people in this province. That's what will happen.

The minister has said that the rights of any individual who is defined as a person in this act supersede the greater goals of collective British Columbia. He may not think that it's as dramatic as that, but in the long term it is. I'm not overstating this case. The minister may say: "Well, we have a difference of philosophy." We sure do. Some of us in this House believe that people should work together harmoniously, and some of us believe that British Columbia should prosper. The ones in this House who believe that are all on this side at the present time.

[5:15]

HON. MR. BRUMMET: I didn't want to believe what I was hearing, Mr. Chairman, but I guess the member did make his position plain.

I understood from this section that only if the council finds that the act was illegal can the person claim redress.

MR. GABELMANN: I said that.

HON. MR. BRUMMET: Yes. But then the member for North Island says that if it angers a group of workers and they say because it angers them they will not cooperate with the employer in future, therefore the rights of the injured person should be ignored. That's the only interpretation I can get from that. In other words, the object of greater harmonious industrial relations.... I wonder if the member realizes what sort of doors that must open up. All a group has to say is: "If you have found our act to be illegal, and if you proceed with any action to provide some redress for the injured party, then we will do angry things." Therefore you must not proceed with the courts, or nobody must proceed with helping the injured party. I guess that is a difference of philosophy among us.

MR. GABELMANN: During the debate on Bill 20, the Minister of Education did very well in response to members on this side, in particular to the member for Burnaby North (Mr. Jones), in handling the debate in a reasonable and intelligent way — and in an informed way. Frankly, I was surprised, because it had not been the pattern from that minister over the time that he and I have been in this House. But it was a good performance. His interjections in this debate to date have been irrelevant and ill-informed.

If there is an illegal activity that in the board's mind deserves punishment.... The board is the court. Remember, the chairman of this board is paid a Supreme Court salary. It's considered to be a court. If the board decides that there is an illegal activity, it has the right to file. Even at the

[ Page 1533 ]

present time it has the right to file in the Supreme Court. So if it would be appropriate that penalty be meted out, then the board can file — no question about that. Now we're going to say that any individual who is named as a person can file — anybody.

HON. MR. BRUMMET: You're saying the individual shouldn't be able to do that?

MR. GABELMANN: No, because the court of appropriate jurisdiction in the matter — remember, it's a contract issue — is currently the Labour Relations Board; in the future, the Industrial Relations Council. If they make a determination that they can't enforce the order in an appropriate way, then they can file and have the Supreme Court do it through a contempt-of-court action — or the other way around; it will become a contempt-of-court action if the violation continues.

I don't know whether the Minister of Education was in the House when I cited the MTOC case in relation to an earlier section. The illegal activity continued for some hours after the board's decision. The employers sought an application to have the order filed in the courts. The board refused on the grounds that within hours the illegal activity stopped. Now, even though the illegal activity has stopped, the employer can file in the Supreme Court; and anybody, including the employer or any disgruntled employee, can sue for damages — doesn't have to, but they can — and the council can't say no, even though the violation of the earlier order of the council may have only carried on for an hour or two after the fact. Clearly, in the best interests of industrial relations, that hour or two of violation.... Perhaps the workers weren't informed in time; perhaps they just were getting some last steam off their chests — whatever. It happens all the time. But the order was actually obeyed, and that MTOC case is a classic in that respect.

Now, under these changes, anybody can go to the council and say.... No, they don't even have to go to the council under this section; they can simply file for damages, and consent in writing is not required from the council. If the illegal action is such as the Minister of Education describes, then the council would no doubt give consent in writing. They don't have to now. Any individual can file for it. So what we do is we transfer the decision about the penalty from the court of appropriate jurisdiction, the council, to the Supreme Court, which has no knowledge of industrial relations, which it doesn't govern. But it's required to impose a penalty. It's going to look for precedent. It's going to look for the basis on which this penalty should be imposed to its own frame of reference, not to the industrial relations frame of reference. And its own frame of reference will be entirely different from the frame of reference that might be required in industrial relations.

Sure, it's a difference in philosophy, but a difference in philosophy with whom? The original philosophy was adopted unanimously in this House — these particular sections and the bill. For 11 years Bill Bennett's government could live with this particular philosophy and made no effort to change it. Successive Labour ministers, none of whom are still members of this House, unfortunately.... Believe it or not, me making that statement!

Interjection.

MR. GABELMANN: Yes, the mortality rate is high in the job, perhaps.

Successive Ministers of Labour — the former Attorney-General, Allan Williams; the former Education minister, Jack Heinrich; the former Energy minister, Bob McClelland; the former member for Kootenay, Terry Segarty; I think those were the four. None of them felt compelled to adopt a philosophy that that side of the House now claims to have. For 11 years that side of the House agreed with this side of the House in respect of the philosophy relating to consent for damage suits.

So what have we got? We had what we thought was a right-wing, left-wing polarization in British Columbia before, but it turns out — if that was the case — that we now have a far right on one side and still the old traditional left wing on the other. The middle ground that was represented by Allan Williams, Jack Heinrich and Terry Segarty, and even Bob McClelland, is, gone from this equation. So the philosophy that we share with the former Bennett government on this issue is not represented by anybody on that side, even members of that side who were present here for the last 11 years? Suddenly the philosophy is overturned? Come on — philosophy! You want to inflame labour relations so you can win elections, because workers might get out of hand given the kind of laws that we're now promulgating. That's what you want: an inflamed situation. You don't want peaceful resolution. You're not going to admit that, but it's evident. It's self-evident to anybody who takes the time to read this legislation and to consult with people who know something about it.

HON. MR. BRUMMET: As the Minister of Social Services and Housing (Hon. Mr. Richmond) indicated earlier, when there's a disagreement, the first accusation is that we don't understand. The member for North Island got up and because I disagreed with his philosophy he made the inference that he was the only one contributing intelligent comments to the debate and that I was not. Obviously, anything that that member does not agree with is less than intelligent in his opinion. Well, I guess we'll differ on that one too.

The other thing that he's indicated is the example that if the dispute had been resolved or was going to be resolved in the next few hours or the next day, then, there should be no way that the injured party can go ahead and claim damages, regardless of what damage may have already been done by the action. That can only proceed if it has been found to be illegal. The party that has been injured should not have the right — according to that member — to say: "I want to sue for damages." It's only the council that may say: "You may sue for damages." The injured party may not go ahead and sue for damages; someone has to say: "We give you our permission to decide that you have been injured, financially or in some other way."

That is the one thing, obviously, I would never agree with that member on. Somehow the fact that no changes have been made over the years seems to indicate that that supports his position — that people should not be able to sue for damages, regardless of how much damage they have suffered, because this has existed.

MR. MILLER: Mr. Chairman, as we debate this and the previous section, it becomes clearer and clearer to me that Bill King indeed was very unbiased when he put together the

[ Page 1534 ]

Labour Code. I think the Minister of Education would do well to consider that a clause that has withstood the test of time and the courts in all probability is a very useful one and a very workable one. If sometimes, in trying to advance arguments, there may be a level of frustration on this side of the House, I would hope that some objective observers of this scene would forgive us.

I will make essentially the same point that I tried to make with the last change. Could you advise me what would compel the parties in dispute to place too much reliance or to feel compelled to resolve the issue at the board level or the council level if in fact either party can proceed beyond that to the courts? Surely you understand that the council or the board will simply be a stopgap. It will be a pit stop on the route to the courts. If that is the case, surely it weakens the power of the board or the council to force the parties in dispute to resolve their differences. I make my argument without rancour or any feelings of superiority or any other thing. It just seems to me so patently logical.

I have two decisions here that deal with the board's determination of whether or not a party who was aggrieved by a violation of section 5 should be allowed to sue. In one case, the board says yes; in one line, in terms of their reasons: " Defiance of a board order has been and will continue to be a strong factor in persuading the board to grant its consent." It is a power that the board has, and the parties before it know that. They know that they should try to resolve the difference, and they also know that if they are just fooling around, if they are going to treat the board lightly, they will wind up in court. That gives them an incentive to resolve. The minister laughs.

Finally, I have another decision where the board refused consent. The facts of the case — I won't read it all — substantially are that the employer, through its actions, caused a situation in which the employees did not get paid. The employees put up a picket line, and the matter was resolved very quickly. The board, in determining the issue after reviewing the circumstances, said the employer had some fault here. Let me go back to that old phrase that allowed the board the discretion: when an employer comes with dirty hands or without clean hands, it becomes a factor.

[5:30]

We're not standing here saying people should be denied natural justice. What we're saying is that we're framing legislation to deal with the very complex relationship between labour on one hand and management on the other. That legislation deserves the most careful scrutiny, and it also deserves, as Bill King's legislation did.... Hopefully it's built on a foundation that will serve the parties, actually resolve those differences, and withstand the test of time and the courts. We have a very real fear, with these kinds of changes, that the parties will more and more say that the board or council is irrelevant; we know we're going to wind up in the courts anyway.

If I were advising somebody on employment opportunities in this province, if this legislation goes through, I think the growth industry is going to be in lawyers and the courts. You had better be prepared to fork over a lot more money for those things, because there will be backlogs like you would not believe.

I make this argument sincerely, and I hope logically. It's not a question of simply being opposed to everything that comes in; it's a question of looking at it, applying it to something that at least some of us have some familiarity with, and saying that for these reasons it won't work. So don't get too upset if we make logical arguments.

MR. D'ARCY: Mr. Chairman, I want to comment on an attitude that I hear coming from both the Minister of Labour and the Minister of Education (Hon. Mr. Brummet). They either are under the misconception, or wish to portray a misconception, that individuals who commit offences during labour disputes cannot be sued. Of course, whether or not the suit is financially successful would depend upon the courts. But any individual convicted of an offence against a provincial or federal statute is vulnerable and is liable to suit and the risk of having to pay damages — indeed, substantial damages.

What this section refers to is only those persons who are alleged to have violated section 5 of the act. It does not mean any offence. It has been stated by the Minister of Education (Hon. Mr. Brummet) and the Minister of Labour that people should have the right to seek redress. I agree, Mr. Chairman. When someone has been convicted of an offence.... In other words, it's not my allegation or someone else's allegation. But when the courts have decided that someone is guilty of an offence, yes, they should be, and are vulnerable to being, sued. What we are talking about here is someone who is deemed to be, or alleged to have been, in violation of section 5 only.

For the other side of the House to suggest that this side of the House is trying to prevent someone from seeking damages from someone who has been convicted of an offence, when that has been established by the court, is pure nonsense. I think we should clear the air on that one right now.

Now I am going to go into a little bit of the hypothetical or theoretical here, because it has been used on both sides. Why would a Labour Relations Board or an Industrial Relations Council want to indicate that a suit should not take place? It would only be logical that to allow someone to go into court on what the board considers to be a frivolous action would in all probability exacerbate and indeed aggravate a very dangerous situation that already existed.

I could use the expression of prolonging and even provoking or rubbing salt into an open wound, whether it be on one side or the other, whereas in many cases the situation which resulted in the allegation that there was a violation of section 5 may have been over and very rapidly forgotten. The important thing is to get along with productive economic activity — peaceful, productive economic activity. That is the important issue, and I am sure that the board, quasi-judicial body that it is, would make decisions based on those grounds.

Mr. Chairman, where someone has been convicted of an offence in this province or against a federal statute, under the Criminal Code, they are vulnerable to lawsuit. They always have been. I quite frankly find my intelligence insulted by anyone on the other side alleging that it is now, or ever has been, any different.

MR. CLARK: I will be very brief. This sort of amendment is inconsistent, really, with the very rationale for having a Labour Relations Board in the first place. The reason we have specialized administrative tribunals to hear these cases is that the courts don't have the expertise to deal with them.

This amendment gives the right to go to court to hear these matters, and the Labour Relations Board no longer has the discretion to prohibit such lawsuits when it's appropriate

[ Page 1535 ]

to do so. This is the important point, I think, that may have been missed. If an employer goes to the Labour Relations Board now and asks leave to sue for damages, the onus is on the union to prove that it is not an appropriate remedy. They have to prove now that there is a larger labour relations reason why leave should not be granted to sue. That's how it works now.

The Labour Relations Board, unlike the courts, has the discretion to review the labour relations context in which the action took place. So if an employer asks for leave to sue, it is granted, and has been granted if the union cannot prove that it is inappropriate to allow leave to be granted. That's a big difference from saying that the previous Code doesn't allow the right to sue and this does. The previous Code does allow it, but only under strict circumstances, and the onus is on the union. Why then, if the leave to sue is already allowed — and it has been granted from time to time, and the onus is on the union to prove it — would you remove that discretion from the new board? You're appointing all the people to the new board anyway. You can determine, to some extent at least, the makeup. You're determining this whole thing. All that happens now. They can still sue, as long as the union can't prove otherwise. The onus is on the union now. Why would you remove that discretion to review the broader labour relations context and simply make it legalistic and require that kind of legal right to sue for damages?

HON. L. HANSON: Firstly, I'd like to point out to the previous speaker — the member for Rossland-Trail (Mr. D'Arcy), I believe — that the amendment does read that a court of competent jurisdiction may award damages for injury or losses suffered as a consequence of conduct contravening part 5, if the council has first determined that there has been a contravention of part 5. So at that point it’s not an alleged contravention; it is a contravention by the decision of the tribunal, the Industrial Relations Council in this case.

Also, to the member, I guess that our philosophy of saying that there should be a recourse to an individual if in fact it has been proved that there has been a contravention as it relates to section 5.... We don't put the rights of the individual above the rights of the group. We simply say that they're not any greater but they're certainly equal to the rights of the group. We feel that that is a well-justified philosophy.

MR. SIHOTA: Once again the minister hasn't answered any of the questions that were posed to him. Somebody will take another shot, and in doing so I want to make some comments about what the Minister of Education (Hon. Mr. Brurnmet) had to say as well.

There is an attitude on the part of the members on the other side who are bringing forward this amendment that basically says that if my rights — using the word in its liberal sense — are violated, then I ought to have the right to sue; that there ought to be no impediment; that I shouldn't have to have leave of the labour board to proceed to court; that there ought to be just a freeway to the courts on these types of matters if an employer or a third party feels aggrieved by a section 5 action. The assumption in that, which I want to come back to in a minute, is the fact that there ought to be an unfettered right to seek damages.

Let's leave that for a moment; I'll come back to that thought. But let's first sandwich those two thoughts in with a recognition of what the current Code does, because the Minister of Education clearly does not understand that the right to go to court is already there. The jurisprudence is that it is up to the party being sued — and in the case of an employer employee argument, the trade union — to demonstrate that it would be inappropriate to give the written authorization to go to court. So the onus is not on the party that wants to sue to show that it ought to have the opportunity to sue; it's up to the party being attacked to show that it would be inappropriate to refer the matter to court.

In determining appropriateness or inappropriateness in the legislation, the board takes into account its fundamental role. Its fundamental role is to maintain harmonious labour relations in the province. It may consider it appropriate to put that principle ahead of the ability of an employer who feels aggrieved — or, in the opposite situation, an employee — to sue, to place paramount consideration on the principle of maintaining good relationships and to bat a blind eye, if I can put it that way, to certain damages that may be done. In the interests of maintaining ongoing harmonious labour relations, I can't see how one would have a hang-up about that. Indeed, if one reads section 18 of this legislation, the first power provided to the council is within its terms of reference, to maintain harmonious labour relations in the province. Therefore it only stands to reason that you may want to provide a bit of a safety net before these matters go to court, so as not to inflame people.

Having said that, if one understands that that's the rationale, let's now go back to the principle that the Minister of Education laid out. I guess my point in standing up and talking on this matter is that I think the Minister of Education is wrong in thinking that you have an unfettered right to seek damages. Let's take the most extreme example. Let's take a situation where one's Charter of Rights rights have been violated — right to liberty, right to free speech, assembly, anything like that. Let's say that someone feels that because of an assembly their workplace was interrupted. Let's say it was a political protest outside a factory. Let's say it's Fantasy Gardens — just to use a hypothetical situation; and I don't mean that in a comical way — a business that could be prone to a political assembly. If the proprietors of that business wanted to sue for economic loss, assuming that there was some, would they have a right under the Charter to sue? The Minister of Education, I think, wrongfully assumes that you can simply sue for damages, without leave of the court, and that's just not true. In the example that I've just provided, someone exercising the right to assembly causing business loss would still have to go before the court — I will quote in a second from the Charter of Rights — and would have to have leave of the court to seek an economic loss award.

[5:45]

You don't just get it. You don't simply plead it and come to the conclusion that you're going to get it. That's not the way the world works. Often, and in that instance, you have to get leave of the court to apply for those damages, because the Charter says — section 24(1) — that it would be up to the court to determine whatever remedies it considers appropriate and just in the circumstances, and it may decide that damages are not appropriate and just in the circumstances. So you don't have this freeway right to damages. You do have to have the permission of the court to proceed with your claim for damages. Similarly, under the Labour Relations Board it used to be, until this amendment came in, that you had to have the blessing of the Labour Code to move on.

The Charter doesn't even talk about whose onus it is in the example I provided, to determine whether or not the green

[ Page 1536 ]

light should be given. But in the case of labour jurisprudence it's clear that the onus is on the party being attacked — let's say, in the traditional terms, the trade union — to flash the red light. If you take just what is contained within the Charter and what used to be contained in the old Labour Code before this amendment came in, there's not a heck of a lot of difference. But this amendment seeks to expedite the process even more. It seeks to allow for an approval by an intermediate expert authority: the Labour Relations Board and, in the future, the council. It seeks to eliminate all of that, and in doing so tends to ignore what ought to be the overriding principle, which is one of maintaining harmonious labour relations.

The Minister of Labour can't have it both ways. Is it the intention of the legislation to preserve and maintain harmonious labour relations, or is it simply to allow for expedited ways to the courts to seek damages? If you want to expedite things, if you want to inflame things even more — as someone else said, to rub salt in the wounds — then you go ahead and support this type of amendment. On the other hand, if you want to do something that tries to curtail the placing of further salt in the wounds and the further inflammation of the labour relations climate between an employer, an employee and a third party, then you don't introduce this type of amendment. You can't have it both ways. You can't say in section 18 that your intent is to do one thing, and then frustrate that intent and whittle away at it in sections like section 22. It's incongruous, it's inconsistent, and it doesn't make a lot of sense. There's no unfettered right, as the Minister of Education would have us believe.

It's not a matter of a difference in philosophy between this side and the other side of the House. To a degree it is, but we're also bringing to the minister's attention — or at least I'm trying to bring it to the minister's attention — a difference in philosophy or principle within the legislation. On the one hand you're saying you want something, and on the other hand you're frustrating that. Perhaps the minister can offer an explanation as to how he reconciles that. I see him shaking his head. He clearly doesn't want to, because there is no explanation. You can't have it both ways, Mr. Minister, and that is what you're trying to do through this section. You can sit there and watch the time and know that ultimately these things will pass, but in the process you are slowly and methodically whittling away at a labour relations model that has served this province reasonably well. You are on a one-man search-and-destroy mission, and this section, when you add it up with all the other ones, just points to that fact.

Section 22 approved on division.

On section 23.

HON. L. HANSON: I move the amendment standing in my name on the order paper. [See appendix.]

On the amendment.

HON. L. HANSON: This of course, as the members are aware, deals with the privative clause. We had representation from a number of organizations, including labour organizations, that suggested that the proposed privative clause in the original of the bill was too simple and might invite more intervention from the courts. The amendment is, in our opinion, dealing with that issue and is also making it very clear that the decisions of the council, in any matter for which they have jurisdiction under the act, will be final and conclusive and not open to questions or review in a court on any grounds. That is the reason for the amendment, Mr. Chairman.

Interjection.

MR. GABELMANN: On the amendment to section 23, yes. Which is 33 of the Code, which is the privative clause, which is a significant amendment to the Code. I had hoped, quite frankly, that we would be through 23 and 24 by six so that we could start 25 — which is the really important double-breasting issue — first thing tomorrow afternoon. I don't think we're going to quite make it, because there are only a few minutes left.

I do want to suggest to the minister, and I would invite anybody in here with a law degree to get involved in this discussion, albeit briefly.... When I'd gone through this privative clause issue, I was surprised to learn that a clause such as the originally proposed one, that a decision or order made by this council is final and binding, is in fact the weakest privative clause in Canada in labour law. I thought to myself, not being a lawyer, that that's ridiculous. It says it's final and binding. What could be more clear than that? But it turns out in law that things aren't simple, and that in fact that was a clause that was so weak that the courts would be able to come in unimpeded in almost every instance.

The amendment, I'm told — and I certainly do not have the competence to make these judgments on my own, but I'm told by enough lawyers of different political persuasion — is, despite what appears to be stronger language, still the weakest privative clause in the country in labour law, in particular because you can't read it in isolation. When you read it in conjunction with the deletion of: ".... the Board to have the exclusive right to determine this jurisdiction..." the deletion which we have just done a few minutes ago.... When read together we now have a situation whereby the courts are allowed to come in whenever they like. It's the weakest privative clause — certainly much weaker than the law to date.

I think it's important to see how the law as it has been worded is viewed by judges in this province. I want to quote from Chief Justice Allan McEachern in 1981 in response, ironically, to Peter Gall. Peter Gall was arguing, although I don't have the argument here and I can't put my finger on it.... Obviously, in terms of McEachern's response, Peter Gall was arguing that the courts weren't intervening often enough in reviewing decisions made by the labour board, under the old privative clause — this was 1981.

AN HON. MEMBER: The strongest.

MR. GABELMANN: The strongest in the country.

Peter Gall was obviously saying to the courts: "You should intervene more. Why don't you?" McEachern, in his response.... I quote, because I think it's important to have this on the record. Chief Justice Allan McEachern's comments in respect to this appeal from Peter Gall for the courts to be more involved, given even the most restrictive privative clause in the country, were:

"I have always considered that in judicial review I am entitled to conclude that if there is defective reasoning, then it is subject to review, and I have always considered that non sequiturs are reviewable....

[ Page 1537 ]

"I also, with respect, find some doubt or difficulty with the proposition that because the courts of this province have not overruled the Labour Relations Board thus far, one can assume from that that we have not overruled them because of our particular deference to their expertise, or the fact that they are fine fellows, or that we like them very much. It seems to me that it is equally tenable to suggest that we have not overruled them because, in the cases which have come before us, we happen to think that they were correct."

Those were the reasons. He went on, and I could quote a lot more, but I won't. I think it would be much better and more effective if we were to resume this debate, hopefully briefly, on the two remaining sections relating to the court's involvement in industrial relations, and then we can get on early on tomorrow afternoon to the question of double-breasting.

MR. CHAIRMAN: Hon. members, earlier today the opposition House Leader moved a motion under standing order 72, subject to a ruling from the Chair, to the intent that this committee, in the course of its deliberations on the clauses of Bill 19, call before it certain witnesses. The hon, member, in support of his claim to move such a motion, cited a passage in Sir Erskine May making reference to examination of a witness by a Committee of the Whole House. The passage in question goes on to distinguish the format of the proceedings, according to whether or not the witness "is in the custody of the Sergeant- at-Arms," or "is brought from any prison in custody." Such proceedings are traditionally used in relation to breaches of privilege and contempt of the House.

Proceedings in the whole House have, but very infrequently, been the forum used in matters of breach of privilege and contempt of parliament alleged against a person summoned to the bar of the House or before a committee of the House, as the case may be. This reference is taken from the Kennedy Brothers case, from the Journals of the House, Speaker's Decisions, volume 1, page 114.

There is no doubt that, in order to facilitate the conduct of any inquiry, the House could, if it saw fit, authorize a Committee of the Whole House to examine a witness brought to the bar of the House rather than refer the inquiry to a select standing committee of the House, which committees have already been, and are traditionally, empowered to call witnesses. See Votes and Proceedings, No. 1, of this session.

Standing order 72, it should be noted, falls under chapter VIII of the Standing Orders, which is headed "Select Standing and Special Committees," whereas "Committee of the Whole," under other standing orders, is specifically referred to as such. For example, standing order 84 refers to "proceedings upon bills in Committee of the Whole." It is abundantly clear to the Chair that the reference to "any committee of the House" in standing order 72 means any special or select standing committee of the House, as indicated by the chapter heading under which it appears.

The only questions which had been referred by the House to this Committee of the Whole are the clauses of Bill 19, and nothing further. The House has not empowered the Committee of the Whole to call witnesses, as it specifically has done with respect to the select standing committees, irrespective of the reference to witnesses contained in standing order 72.

As is noted in Sir Erskine May, twelfth edition, at page 364, the ordinary function of the Committee of the Whole House is deliberation and not inquiry. The hon. opposition House Leader seeks to debate, through the calling of witnesses, matters other than the clauses of the bill. However, the Chair must rule that such debate on matters not referred by the House to this committee would not be in order, The motion upon which I earlier deferred my ruling cannot be found to be in order, and I so rule.

The House resumed; Mr. Speaker in the chair.

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

Hon. Mr. Strachan moved adjournment of the House.

Motion approved.

The House adjourned at 6 p.m.

Appendix

AMENDMENTS TO BILLS

19. The Hon. L. Hanson to move, in Committee of the Whole on Bill (No. 19) intituled Industrial Relations Reform Act, 1987 to amend as follows:

SECTION 19, by deleting the proposed section 28(5) and substituting the following:

(5) Where an application or complaint is made to the council under this section and the council considers that it should be treated as a matter of urgency, the council may, after giving each party to the matter an opportunity to be heard, make an interim order.

SECTION 23, by deleting section 23 and substituting the following:

23. Section 33 is repealed and the following substituted:

Finality of decisions and orders

33. A decision or order of the council under this Act, a collective agreement or the regulations on a matter in respect of which the council has jurisdiction is final and conclusive and is not open to question or review in a court on any grounds.