2009 Legislative Session: First Session, 39th Parliament
HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

official report of

Debates of the Legislative Assembly

(hansard)

Wednesday, September 23, 2009

Afternoon Sitting

Volume 3, Number 3

[ Page 717 ]

WEDNESDAY, SEPTEMBER 23, 2009

The House met at 1:34 p.m.

[Mr. Speaker in the chair.]

Routine Business

Prayers.

Introductions by Members

M. Karagianis: I have today in the House two sets of guests. First and foremost, I have a group of parents of autistic children here in the Legislature today to share the stories about their experience with the early intervention autistic program. I have Cher Sherwood — I don't see her actually here yet, so she must be on her way — Catherine Clark-Turnquist and her little baby Alexander, and Nicole Strong. I'd like the House to please make them welcome.

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In addition to that, I have another distinguished group of guests here in the House. From the Vic West Community Association I have the harbour committee chair, Audrey Whittall. Also from the harbour committee is Diane Carr. From the Victoria Harbour Defence Alliance, Peter Pollen and Terry Milne — Peter Pollen, as many will remember, is past mayor in Victoria. From the Victoria Canoe and Kayak Club, Doug Linton and Linda Thomson; and from the Save Victoria Harbour group, Lynn MacDonald, Gordon Greeniaus, Carolyn Greeniaus, Richard Couch and Barry Hobbis.

They are here to shepherd through a very important petition, which I'll be presenting later on, in opposition to the mega-yacht project proposed for the Inner Harbour. I hope the House would make them very welcome.

L. Reid: I have three wonderful guests in the gallery today. Mary Gordon has joined us. Mary is the founder of the Roots of Empathy and the Seeds of Empathy. That work is well underway in British Columbia. She's joined by Sheri Fogarty, who does project development, and Monique Gray-Smith, who is the aboriginal adviser to the Roots and Seeds of Empathy in British Columbia and across the land. I would ask the House to please make them genuinely welcome.

G. Coons: In the House today are three special guests — two from Guadalajara, Mexico: Luis Alonso Mariscal Carvajal, who is an engineer, and Ximena de Alba del Castillo Negrete, who is a teacher and businesswoman.

They're joined by their good friend and my good friend Derek Reimer, who is retired from our Provincial Archives and who operates a very unique bed-and-breakfast in town where I happen to stay when I'm in Victoria. Please make them welcome.

N. Simons: I would ask the House to help me welcome three guests from Prince George. We have Mabel Louie, Travis Holyk and Warner Adam. Will the House please make them welcome.

H. Bains: In the vicinity we have 32 grade 10 students from Tamanawis Secondary in Surrey. They are joined by their parents and their teachers. Please join with me in welcoming them.

Hon. K. Falcon: I also want to echo the welcome that the member for Surrey-Newton made to the students from Tamanawis, both the humanities 10 class and the social studies 11 class. I had the opportunity to chat with them in my office today. They're an extremely bright and engaging group of students led by two very, very good teachers, Kathie Cybulskie and Lindsay Hutchison. They are all joining us here today. I'm not sure if they're in the galleries yet, but they are in the vicinity. I ask that they be made welcome.

Introduction and
First Reading of Bills

Bill 11 — LABOUR MOBILITY ACT

Hon. M. Stilwell presented a message from His Honour the Lieutenant-Governor: a bill intituled Labour Mobility Act.

Hon. M. Stilwell: I move that Bill 11 be introduced and read a first time now.

Motion approved.

Hon. M. Stilwell: I am very pleased to introduce Bill 11, the Labour Mobility Act. We first introduced this bill during the last session, indicating government's commitment to and direction for full labour mobility. This bill represents our support for interprovincial collaboration to full labour mobility and to the success of workers in skilled trades and professions.

This legislation enables British Columbians and all Canadians with the power to use their skills and experience to their best advantage. Now more than ever we must find ways to ensure that our businesses, skilled tradespersons and professionals can pursue every opportunity, gain every advantage, and lead our province and Canada in economic recovery.

This legislation removes longstanding, unproductive and archaic barriers, enabling British Columbia to attract the workers our economy will need in the years ahead.
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Mr. Speaker, I move that the bill be placed on orders of the day for second reading at the next sitting of the House after today.

Bill 11, Labour Mobility Act, introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

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Statements
(Standing Order 25B)

CLEAN DRINKING WATER FUNDRAISING
EVENT IN OKANAGAN AREA

N. Letnick: I had the exciting experience this past Saturday, along with many British Columbians, of participating in the second annual Turn on the Tap Motorcycle Ride. This very enjoyable ride through the beautiful scenic Okanagan, and other areas like it in Alberta and Ontario, raises money for Turn on the Tap, an initiative organized by Samaritan's Purse Canada, a Christian international relief and development organization.

Samaritan's Purse Canada is building and installing water filters in the developing world. They are using made-in-Canada technology, a device called a BioSand water filter. This filter transforms contaminated or polluted water into safe drinkable water almost instantly.

Almost one billion people on our planet are forced to drink contaminated water every day, causing a wide variety of diarrheal diseases and killing people at a rate of one every 20 seconds with most of the dead being young children.

The BioSand filter, which has been studied by a variety of experts including the World Health Organization, is helping to save lives. Each filter, with an average cost of only $100 including important health and hygiene training, serves eight to ten people. Clean water restores good health so that children are able to stay in school and parents continue to work. Families benefit; communities benefit; entire nations benefit.

Samaritan's Purse has built and installed more than 100,000 BioSand filters in the developing world, and in recent years they are committed to building and installing many, many more.

I would like to acknowledge B.C. event organizers Alan and Bonnie Mackenzie; Carly Simla; Ed Weiss and Harold Bewnerick; Cobb's Bakery and Choices Market for their generous sponsorship; and Trinity Baptist, Alexis Park Church, the House, as well as Evangel Church for hosting the riders.

Recent Turn on the Tap motorcycle rides are helping to raise the funds to ensure that Samaritan's Purse and British Columbians continue to provide these important water filters.

PORT ALBERNI TOY RUN
FOR CHILDREN'S ORGANIZATIONS

S. Fraser: The largest children's fundraiser on the west coast took to the road last weekend. The 25th annual Port Alberni Toy Run rumbled to life to raise money for the west coast children's charities.

Since 1984 the Port Alberni Toy Run has grown from a December run of six motorcyclists to a must-attend event in September, with this year bringing in 1,200 motorcycle riders from throughout Vancouver Island, the rest of British Columbia and the western provinces and states.

The chair of the society, Scot Loudon, said it best: "The Port Alberni Toy Run Society is a volunteer organization, and every dollar raised goes to support children's charities and programs in Port Alberni, Ucluelet and Tofino. Because of the generosity of the motorcyclists and the people of Port Alberni, we've distributed more than $1 million in money and toys to children's groups through the past 25 years."

Last week's toy run was a major success. Motorcycles roared to life at noon on Saturday and moved in convoy from Little Qualicum Falls, making their way over the hump on Highway 4 and convening at the Glenwood Centre in Port Alberni. The fun continued there with games, face-painting, popcorn and all-around family fun. By Sunday $62,000 was raised and an additional $25,000 in toys was collected.

Some of the charities supported by the Port Alberni Toy Run include the Kiwanis Hilton children's centre, the Salvation Army, the Bread of Life, district 70 healthy lunches program, Raise-a-Reader and dozens of other services. The Port Alberni Toy Run is the largest motorcycle event on Vancouver Island. As I mentioned, 1,200 motorcyclists participated in this 25th anniversary event, and it was all about the children.

BIOTECHNOLOGY INDUSTRY IN B.C.

R. Lee: This week is National Biotechnology Week in Canada. It's time to recognize the contributions of tens of thousands of British Columbians who work in this field as students, researchers, mentors, investors, entrepreneurs, technicians, engineers and scientists. Biotech is a growing industry in B.C., and it includes biopharmaceuticals, medical devices, bioproducts and bioenergy, industrial and environmental biotech, bioinformatics, forest biotech, agriculture biotech and marine biotech, etc.

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Many of B.C.'s hundreds of biotech companies are located in Burnaby. Amgen British Columbia, Xenon Pharmaceuticals and CANTEST are just three. Amgen British Columbia is one of several research facilities operated by Amgen Inc., which specializes in the discovery
[ Page 719 ]
and development of human therapeutic antibodies. Xenon Pharmaceuticals is a privately owned clinical genetics-based drug discovery and development company engaged in developing small molecule therapies based on the genetic courses of select metabolic, neurological and cardiovascular diseases.

CANTEST BioPharma Services is an analytical laboratory company specializing in validation and testing services. It conducts clinical drug studies and works with other pharmaceutical and biotech companies to solve scientific problems.

As we navigate through this global economic crisis, we must reinforce our strengths so that we emerge stronger. We must not only continue to develop our rich heritage of natural resource industries; we must also be innovative to increase our productivity and competitiveness. Our biotechnology industry is a prime example of an area where we can do just this.

I ask that my fellow members join me in congratulating all who work in this important and exciting new industry.

CANWEST RAISE-A-READER CAMPAIGN

D. Thorne: I am pleased to rise today to acknowledge and support a campaign that for 13 years has brought together hundreds of volunteers, community leaders and celebrities. I'm speaking, of course, of Canwest's Raise-a-Reader campaign.

With the goal of eliminating family illiteracy in Canada, British Columbians have been generously donating their time and their money. Over the years Raise-a-Reader has donated millions of dollars to literacy programs, libraries and public schools.

This campaign reminds us that 40 percent of adults in B.C. have poor literacy skills, and nearly 30 percent of children entering kindergarten do not have the language or literacy skills they need.

Poor literacy skills are a barrier to full participation in society. Income levels, civic participation and even health are directly related. Researchers estimate that the rate of return from investments in early literacy intervention programs is up to $8 for every dollar invested.

It's tragic that in B.C., important literacy programs are being cut. We now know that higher levels of literacy are associated with more stable employment, higher wages and a healthier economy. Literacy programs have a huge impact on an individual's ability to adapt to changes in the labour market and increases their employability. Ideally, literacy issues should be dealt with early in life with programs such as Books for Babies.

To abandon child and youth literacy programs for any reason is a mistake, because as we know, children are our future. Poor literacy is B.C.'s hidden deficit.

I applaud Canwest's Raise-a-Reader campaign and all the volunteers whose hard work will pay off in dividends, because promoting a child's healthy development in their earliest years is never a bad investment.

FRENCH IMMERSION

M. Dalton: Today I would like to recognize the teachers, parents and students who have made French immersion the great success story that it is in the province of British Columbia and in the school districts which I represent — school district 42, Maple Ridge–Pitt Meadows, and school district 75, Mission.

There are now over 42,000 students in French immersion and another 5,000 students in francophone programs. Hundreds of thousands of British Columbians have taken French immersion, and it has grown every year for the past 11 years in spite of declining enrolment. In Maple Ridge and Pitt Meadows over 1,500 students, or 10 percent of the student population, are in the program. In Mission there are hundreds more.

In Pitt Meadows Elementary School, where I taught last year, parents lined up for hours before kindergarten registration in order to secure a spot for their child. This has been the story in many public schools across the province. French immersion is not an elite program. It is open to all students at no extra cost.

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Parents recognize that fluency in French can open up a world of opportunities for their children. French acquisition expands possibilities of employment in Canada and abroad. Travelling becomes easier and more enjoyable. An increased appreciation for other cultures is instilled, and other languages are more easily acquired.

I applaud the French immersion teachers, who not only face the usual instructional challenges, but they must do so in the students' second language. Obviously, they're doing a great job, and the numbers speak for themselves.

In Maple Ridge and Pitt Meadows there are six elementary schools and two secondary schools that offer French immersion, and in Mission, Mission Secondary, Ecole Christine Morrison and Mission Central also offer it.

Félicitations et bravo aux étudiants et aux professeurs dans ce programme exceptionnel.

[Congratulations and bravo to the students and teachers in this exceptional program.]

[French text and translation provided by M. Dalton.]

Congratulations to all those involved.

SOOKE FAMILY RESOURCE SOCIETY

J. Horgan: All of us have been touched by organizations that provide invaluable services and resources to residents in our communities. Today I rise to speak about an important group in the western reaches of the capital regional district, the Sooke Family Resource Society.
[ Page 720 ]

Established in 1984 by a dedicated group of women who aimed to provide families with opportunities for support, sharing, learning and relaxation in an informal, neighbourhood house setting, the Sooke Family Resource Society has become a vital agency providing essential and supportive services for local children and families.

Serving families in Sooke, East Sooke, Jordan River, Otter Point, Shirley and Port Renfrew, the society offers parenting and life skill courses, preschool programs, a used clothing exchange and toy lending library, and child and family referral and counselling services. Just recently they received international accreditation for meeting standards of excellence in service delivery.

A quarter-century of service to children and families is cause for celebration. This Saturday from 12:30 to 3:30 the society is marking its 25th anniversary with a family festival at the CASA building on Townsend Road in Sooke. The party will include live music, art activities, a barbecue and fun family activities as well. I encourage community members to join in the fun at the CASA, and I ask members of this House to join me in wishing a happy 25th to the society and hopes for 25 more.

Oral Questions

FUNDING FOR REPAIRS AT
JOHNSTON HEIGHTS SECONDARY SCHOOL

S. Hammell: For years the roof, skylights and windows at Johnston Heights Secondary in Surrey have leaked. With little support from this government, buckets have been used to catch the dripping water. Finally this spring, just before the election, the government agreed to provide a grant for repairs. In the middle of the summer, in an about-face, the grant was pulled, and the students are stuck in leaky classrooms.

To the Minister of Education: is it acceptable for our children to be learning in leaky classrooms surrounded by buckets catching dripping water?

Hon. M. MacDiarmid: I'm certainly aware of this situation, and I would like to reassure the members opposite that students' health and safety is a top priority for this government. It remains a top priority for this government.

School districts are responsible for environmental quality. They continue to monitor that in this school, and that continues. It's their responsibility.

Interjections.

Mr. Speaker: Members.

Hon. M. MacDiarmid: We've been in contact with this school, and we're discussing the possibility of them using some of their local capital reserves for this project. We're working with them, just as we've worked with the Vancouver school district for a similar problem.

Mr. Speaker: The member has a supplemental.

S. Hammell: This is as much an example of this government's ineptitude as it is of their neglect of our children. After receiving confirmation of a $3.5 million grant and being advanced about half of it, the school hired a contractor and moved in portables as temporary classrooms.

Weeks later they were told that the funding no longer exists and students are out of luck. This government's incompetence has meant that $700,000 went down the tube to move around portables and pay severance for a broken contract.

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Again to the minister: why should students at Johnston Heights Secondary pay the price for a government in chaos, and why should they suffer because the Liberals don't get their priorities right?

Hon. M. MacDiarmid: This government clearly has its priorities exactly right.

Interjections.

Mr. Speaker: Members.

Continue, Minister.

Hon. M. MacDiarmid: In the face of a global economic downturn, this government is investing record levels in education — $4.5 billion, an $84 million increase from last year's investment in our students. In a time of an economic downturn, we're keeping British Columbians working. This year — $177 million in Surrey alone on school buildings, on seismic upgrades.

This government has its priorities straight. We are absolutely working with this school district and all school districts to make sure that student safety and health is addressed.

Mr. Speaker: The member has a further supplemental.

S. Hammell: Maybe the minister didn't hear me. The work had begun. The portables had been moved onto the site, 20 percent of the grant money had been spent, and then the government shut down the program — $700,000 wasted. Now the children in our classrooms will pay the price.

To the minister: what does she say to the students of Johnston Heights Secondary who were told before the election that the school would be fixed and, after, were told they were out of luck? How does this government explain to them their about-face on education?
[ Page 721 ]

Hon. M. MacDiarmid: It is particularly rich to hear from the member opposite about Surrey's portables. When the members opposite were in government, they had enough portables to form a very large school district in Surrey.

Interjections.

Mr. Speaker: Minister, just take your seat.

Members.

Continue, Minister.

Hon. M. MacDiarmid: We are working with school districts to ensure that students are safe in those districts. We're continuing to do that in every district, including this one, and we're working closely with this particular school district on this issue.

J. Brar: The situation is very clear that this government chose to cancel the funding of the school and waste $700,000 of taxpayer money to cover up their own budget deception. That's the situation.

This government's incompetence is taking a toll on our families. This is what the parent of a student had to say to the Premier: "I'm sure if you were to visit your grandson at school, you wouldn't tolerate the bucket placed in the corner of the classroom. You would do something about it." Clearly, this government's approach to education is impacting our students, families and our entire school system.

My question again is to the Minister of Education. Can the Minister of Education tell this House today what steps the minister will take to fix this mess at the school, and what will she say to the families who are asking for answers?

[1400]

Hon. M. MacDiarmid: As I've already clarified, we are working with this school district to see how this problem can be addressed. Many of the school districts have capital reserves that can be used for this kind of project, and we certainly are working with this school district to see if that is a possibility.

The record is very clear. British Columbia's schools are safe. They are continuing to be invested in. Not only that, we have some of the best performances in the world coming out of our schools. I find it reprehensible that students' and parents' confidence is being undermined by the members opposite.

Mr. Speaker: The member has a supplemental.

J. Brar: Again, the reality is this — 175 less schools, a thousand classrooms over the class size, funding cut to libraries and leaky schools. That's the legacy of this government.

Students of Surrey and their families don't trust this minister and this government and their ability to manage the school system. Johnston School is a prime example of that.

In the letter to the Premier, the parent continued to say: "These kinds of actions are the reason the funding is so short. Not only should you be ashamed of the wasteful actions, you should be motivated to correct the situation."

My question, again, to the Minister of Education: will the minister stand up in this House today, correct the mess they created in this school and restore the funding to fix the leaks at this school?

Hon. M. MacDiarmid: Year after year after year over the last eight years, there have been increasing investments in schools — increasing investments in per-pupil funding every single year. This year is no different.

Interjections.

Mr. Speaker: Members.

Just take your seat.

Members.

Continue, Minister.

Hon. M. MacDiarmid: As the member opposite is well aware, we've had declining enrolment in this province — 60,000 fewer students this year than there were in 2001. Yet in spite of that, we've consistently, every year, increased the funding. Since 2001, $177 million for new schools in Surrey alone…

Interjections.

Mr. Speaker: Members.

Hon. M. MacDiarmid: …and 34 capital and seismic projects, including the new Adams Road Elementary School and Rosemary Heights Elementary School.

R. Austin: All we get from this minister are excuses and false assurances. Johnston Heights is just one example of how this government's decisions are directly impacting our classrooms. Cuts to PAC funds, cuts to annual facilities grants, cuts to libraries, cuts to literacy programs — the cuts keep coming while school districts are expected to balance their budgets.

To the minister: is she just ignoring what these cuts are doing to our schools and our classrooms, or does she just not get it? How does she expect school districts to balance their budgets without affecting the classroom?

Hon. M. MacDiarmid: I feel I must be in some sort of parallel universe here.

Year after year after year, the funding….
[ Page 722 ]

Interjections.

Mr. Speaker: Minister. Minister, just take your seat.

Members.

Continue, Minister.

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Hon. M. MacDiarmid: Year after year, funding has continued to increase. It has increased. We have invested, this year alone, $447 million in new schools and seismic upgrades.

We have increased our per-pupil funding to record levels. This is the correct direction for things to go — increased funding and increased investment in this precious resource, the students of British Columbia.

Mr. Speaker: The member has a supplemental.

R. Austin: Last week the minister stated: "We've been very clear that any issue around student health and safety we will work with them to address." My question to the minister is very simple. Will the minister confirm that she will return the money to Surrey school district so they can fix this leaky roof, or is this not a matter of health and safety?

Hon. M. MacDiarmid: I will gladly confirm with the member opposite what we have already done and what we're doing on an ongoing basis with every school district, including this one. We're in consultation with them. We're talking with them about how they can meet their needs at each individual school district level. Health and safety of students is absolutely being addressed, clearly.

B.C. AWARDS ONLINE WEBSITE

V. Huntington: This question is, coincidentally, for the Minister of Education. I'm wondering if the minister could advise the House of the reasoning behind the sudden cancellation of the B.C. Awards Online website.

Hon. M. MacDiarmid: I'll take that question under notice.

Interjections.

Mr. Speaker: Members.

EARLY INTERVENTION PROGRAM
FOR CHILDREN WITH AUTISM

M. Karagianis: During the election, the B.C. Liberals did not once mention that they were going to cut the intensive early intervention program for autistic children, but last week that's exactly what the Minister of Children and Families did. The cuts surprised and devastated families right across this province.

To defend the cuts, the minister said that the program had not been effective, but then yesterday she backtracked on that statement. So my question is this. Exactly what kind of data or evidence did the minister use in order to cut this very successful program?

Hon. M. Polak: The decision that we made was based on the principles of equity, access and increasing funding for children with autism across this province. There's no question that for the children who are enrolled or were enrolled in EIBI, as we move towards the transition at the end of January, this is going to be a difficult time.

We will be working with them and working with the agencies involved to ensure that there is a transition plan in place as they move to our autism funding program, but there's no question that the basis of this decision was not the quality of the EIBI program. That's not in doubt. This decision will provide greater equity, better access and increased funding for hundreds of parents across this province.

Mr. Speaker: The member has a supplemental.

M. Karagianis: The minister has admitted no evidence whatsoever, no data to back up the decision to cut back this very successful program. And yet the minister has admitted today that the increase in funding to the lowest common denominator only buys an extra hour of program support for these families.

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Today families are here in the Legislature to talk about the difference that this program, the EIBI program, has made — a significant difference to their children. Cher Sherwood said that she didn't know if her son would ever talk, look a person in the eye, or have the skills to feed or clothe himself. Yet after going through the EIBI program, her son has just entered the public school system without any aides or any other support systems — not required because of the success of the EIBI.

So I'd like to know from the minister why she did not think about the children like Cher Sherwood's children and all the other families that have similar stories. Why were they not the first consideration? Why did she not consult with families before making these devastating cuts to this program?

Hon. M. Polak: The member may be unaware that for thousands of parents who are dealing with children with autism across this province, the financial burden goes far beyond what governments in any jurisdiction have been able to provide.

What we do know is that we have to make those decisions based on the principles of equity, based on access
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and based on providing the most funding we can to the most children around this province. There is no question that for these 70 children who are enrolled in EIBI, we will have to provide them with support and assistance as we move to transition them into the autism funding program.

But right now, at this very moment, there are also hundreds of parents around this province who are not receiving that additional support, and we seek to try and provide the greatest amount of support that we can for the greatest number of children across this province.

WORKSHOPS AT HOUSING AND
SOCIAL DEVELOPMENT MINISTRY

S. Simpson: The Ministry of Housing and Social Development recently spent $19,000 on a half-day seminar entitled "Emotional Intelligence and How It Relates to Leadership." Can the minister tell us: what was the purpose of this workshop? How does it meet the minister's priorities around vulnerable citizens?

Hon. R. Coleman: I'm not aware of that, so I'll take the member's question on notice, and I'll get back to the member.

N. Simons: Tomorrow the Ministry of Housing and Social Development is offering a course called "Vibrational Facilitation," which is apparently supposed to help people increase their vibrational frequencies. Can the minister please tell this House what that means?

Hon. R. Coleman: I'll take that question on notice as well.

Interjections.

Mr. Speaker: Members. Members.

FUNDING FOR
DOMESTIC VIOLENCE PROGRAMS

D. Black: Family Services of Greater Vancouver has been informed that funding for their domestic violence response team will end in December. This program, which has partnered with the New Westminster police since 1996, provides rapid follow-up to the most severe and high-risk cases of domestic violence. With zero percent recidivism and a 98 percent charge approval rate, the program has saved the lives of countless women in New Westminster. This government is cutting their $44,000 grant.

My question to the Minister of Health is this. Doesn't he think a woman's life is worth $44,000? If he does, will he commit today — commit today — to reinstate this funding?

Hon. K. Heed: Well, I can tell you from my experience as a police officer that domestic violence has a profound impact on our society. The recent tragedies in Burnaby and the unfortunate incident in Vancouver touch us all, and my sympathy goes out to what the families are going through right now and to those children who witnessed that particular event.

I can tell you, Mr. Speaker, that the issue of domestic violence is taken seriously by this government and will continue to be taken seriously by this government. That is why we're working closely with the police and other service providers to coordinate our response and integrate our services to people that are victims of this violence more so than we ever have before.

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This year we have increased funding to domestic violence — and violence in general — programs by $2.4 million to $43 million. This is on top of the $32 million that we provide to run the many transition houses that we have operating throughout the province of British Columbia.

Mr. Speaker: The member has a supplemental.

D. Black: I don't doubt the minister's sympathy, but what I want to see is leadership from this government.

We're talking about the lives of women and children. Without this program, they could be seriously injured or killed. New Westminster police credit the structure of the unit and the unique partnership with the counsellor for saving the lives of women. Cutting this $44,000 contract will not result in savings. Doctor visits and emergency room visits will go up, and so will mental health services costs. It's false economy, Mr. Speaker — false economy.

Again to the minister: will he commit today — commit today — to protect women and children who suffer domestic violence, and will he reinstate this funding?

Hon. K. Heed: I know all too closely what experiences victims go through. I have been dealing with this for several years. I know what it's like to go into a house and see a four-year-old child, a son, hugging his mother on the floor, who has just been the victim of domestic violence. I can tell you the look on their face when we take them, put them in our car and take them to one of the many transition houses we have.

I also know the impact that it has when a life is taken. I've gone into a house, and I've witnessed a young girl crying and hugging her mother on the floor, who has just been killed — and to take that young girl in my arms and comfort her.

Interjections.

Mr. Speaker: Members. Members.
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Hon. K. Heed: We have increased funding around victim services by $2.4 million. With regard to the specific program in New Westminster, I have asked staff to look at that particular program so we can integrate that into our existing response to deal with domestic violence. We all have a responsibility. Everyone in this House has a responsibility to ensure that we put a stop to domestic violence.

A. Dix: What we have here is a profound contradiction between what the minister just said and what actually happened this summer. This program had been successful for years. The Minister of Health and the Fraser Health Authority cut this program. They went to the program offices and cut the program on 30 days' notice.

This is an extraordinarily successful program. Doesn't the Solicitor General think that the government owes an apology to the people who worked in that program? And doesn't he think today the right thing for him to do is to go and talk to the Minister of Health and get the funding from the Fraser Health Authority restored — not weeks from now but today?

Hon. K. Heed: The program, working with the New Westminster police department, is continuing and is funded to the end of the year. The staff is working wholeheartedly to find out how we can bring that aspect of it into our area so we can carry on with the good work that has been done with domestic violence units across British Columbia.

Mr. Speaker: Member has a supplemental.

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A. Dix: Hon. Speaker, they cut a program which they clearly gave no thought to. They walked into the program offices and closed it with the minimum of possible notice. What we're asking the minister today to do…. You know, it was this summer….

Interjections.

Mr. Speaker: Members.

A. Dix: It was this summer that it happened, and there were no cabinet ministers around to defend it. No cabinet ministers signed off on it. It was the wrong decision. It's what happens when you're running around in the middle of the fiscal year trying to make up for an election mistake.

My question to the minister is very simple. Will he or the Minister of Health or one of those ministers over there restore this funding today?

Hon. K. Heed: We have increased funding to victims of violence programs in this province by $2.4 million. I recognize the value of the integration of domestic violence units in British Columbia and the success, having worked alongside one for many, many years in Vancouver. Our government is committed to integrate those services and coordinate those services so that we can make meaningful changes around domestic violence.

I am advised that the funding is in place for this particular program until the end of 2009. I have also advised members opposite that we are actively working on determining how we can carry on with the good work that the program delivers.

M. Farnworth: The domestic violence response team is unique. It has a proven track record of success. It is not discretionary spending. We're not getting an answer from the Solicitor General. We're not getting an answer from the Minister of Health. So perhaps we can get an answer from the one person in that government who can restore the funding.

Will the Premier stand in this House today and do what his Solicitor General will not do and what his Minister of Health will not do, and tell this House…

Interjections.

Mr. Speaker: Members.

M. Farnworth: …that the domestic violence response team is not discretionary funding, and restore that funding and ensure that it continues into the future?

Hon. K. Heed: Mr. Speaker, with respect, I am going to repeat myself so that it's quite clear. This program is continuing to the end of the year. We are actively working on determining how we can carry on with that program. We are working on that.

I want to point out….

Interjections.

Mr. Speaker: Members.

Hon. K. Heed: With respect, I don't know how much clearer I can be. The program is continuing to the end of 2009. We recognize…

Interjections.

Mr. Speaker: Members.

Continue, Minister.

Hon. K. Heed: …the value of integrating our programs and our services, again, so that we can deal with domestic violence in a very, very meaningful way.

[End of question period.]
[ Page 725 ]

M. Karagianis: Hon. Speaker, I would like to submit a petition.

Mr. Speaker: Proceed.

Petitions

M. Karagianis: I have here in excess of 7,000 signatures protesting and opposing the proposed mega-yacht marina on the north shore of Victoria harbour, and I would like to present that today.

Hon. G. Abbott: I have a petition from residents of the Shuswap-Okanagan with respect to a proposed animal waste composting facility.

Orders of the Day

Hon. M. de Jong: I call in this chamber continued committee stage debate on Bill 4, Wills, Estates and Succession Act; and in Committee A, Committee of Supply — for the information of members, the estimates of the Ministry of Citizens' Services, to be followed by the estimates of the Ministry of Forests.

[1425-1430]

Committee of the Whole House

BIll 4 — Wills, estates and
succession act

(continued)

The House in Committee of the Whole (Section B) on Bill 4; L. Reid in the chair.

The committee met at 2:32 p.m.

On section 2 (continued).

Hon. M. de Jong: Yesterday I indicated that I would confirm some information for the member. I gave him, in response to one question, a figure of $50,000. I've since been able to confirm that that was correct.

The second question that I think I undertook to deal with related to whether or not a fifth wheel could be considered a spousal home for the purposes of this act in the definition, and the answer is: under certain circumstances it indeed could.

L. Krog: I want to thank the Attorney General for the certainty of his answer.

We are still dealing with section 2, and I just want to ask if the Attorney General has had an opportunity to consider his position, in light of my comments around section 2 — in particular, the section that deals with "terminate the relationship."

Hon. M. de Jong: I did indeed spend the better part of my evening ruminating on the hon. member's submissions, and persuasive as they are, they have fallen just short of convincing me to amend or offer an amendment to the chamber.

Sections 2 and 3 approved.

On section 4.

L. Krog: I just wonder if the Attorney General could explain the benefit of section 4 to me and to the House and advise if this represents any substantive change from the existing law.

Hon. M. de Jong: As we get into the details, it can be a little bit complex. But it relates, as I think the member knows, to the admissibility of extrinsic evidence of testamentary intent.

[1435]

The objective that I understand was being sought by the wording included here is to avoid circumstances that would have existed under the present wording where evidence would be excluded that actually could provide assistance to a court in determining what the testator's actual meaning was.

There is a distinction in that respect drawn in evidentiary matters between latent and patent ambiguity. We can talk about that in a moment. But the general rationale for the change here was to address situations that presently existed where, in endeavouring to ascertain the actual testator's intent or meaning, evidence that would be helpful and relevant was required to be excluded.

Section 4 approved.

On section 5.

L. Krog: This is a very significant change in the law as it stands now and refers to the death of two persons who "die at the same time or in circumstances that make it uncertain which of them survived the other…."

It makes reference to the fact that "unless a contrary intention appears in the instrument" it's "determined as if they each had survived the other or others. (2) If (a) two or more persons hold property as joint tenants" etc., "unless a contrary intention appears…for the purpose of determining rights…each person is deemed to have held the property…as tenants in common...."

I appreciate that this represents, arguably, progress in some circumstances, and certainly, it's not a statutory presumption that many people in the general public are aware of. I'm just wondering what the rationale for this change is and whether in fact it conforms or not to other jurisdictions.
[ Page 726 ]

Hon. M. de Jong: First of all, I agree with the member that this represents a significant shift. It was, as I recall over the years of work that has taken place leading to this point, the subject of significant discussion.

I can advise the member…. Maybe dealing with his questions in reverse, I am advised that the section adopts a general presumption around survivorship that is identical in substance to that which exists in the uniform Survivorship Act, which has been implemented in the following jurisdictions in Canada: Saskatchewan, Ontario, Manitoba, New Brunswick and the Yukon.

The last thing I will say before, I'm sure, the member pursues the questioning on this section is that there was a general belief that the existing rule around the presumption of survivorship based on age led to circumstances or situations that in no way reflected what would either be logical or be the intent of the deceased.

Section 5 approved.

On section 6.

L. Krog: I wonder if the Attorney General could just explain the impact of section 6.

Hon. M. de Jong: I think, a straightforward response here. It does re-enact section 2(3) of the Survivorship and Presumption of Death Act, which gives the deceased the express authority to displace the general presumption of survivorship. It takes those provisions and embeds them in this act.

While I'm on my feet, since I have and will continue to rely on their guidance through these discussions, I wonder if I might introduce, to the House and the learned opposition critic, Nancy Carter on my left and Tyler Nyvall on my right — who, I am not ashamed to admit, are of invaluable assistance in guiding me through some of these provisions.

[1440]

L. Krog: Some truths are self-evident.

Dealing with section 7 now, yes?

Section 6 approved.

On section 7.

L. Krog: This section, I believe, and I just want to confirm, simply carries forward the provisions of section 2(4) of the Survivorship and Presumption of Death Act.

Hon. M. de Jong: That is correct.

Section 7 approved.

On section 8.

L. Krog: Again, with respect to section 8, my understanding is that this carries forward section 91 of the Estate Administration Act. I'm sorry that I haven't had an opportunity to check. Is it in exactly the same language, or does this represent any change whatsoever?

Hon. M. de Jong: That is true with one noted exception. The existing statutory provisions do not include the five-day survivorship requirement that is part of section 8.

L. Krog: As I recall, starting out in practice, the standard will said if you survive 30 days…. Then it dropped to 14, and the statute now refers to five. Is there some particular reason for picking five days as opposed to seven as opposed 15 as opposed to 14, and does it bring us into concurrence with other jurisdictions?

Hon. M. de Jong: I'm not sure there's real magic around the five number. I can advise, and would and will when we get to sections 9 and 10, that there are a couple of rationales for settling on that figure. It was the B.C. Law Institute's — and actually, the Law Reform Commission's — recommendation to settle on five days. Apparently, the American Uniform Probate Code sets a period of survivorship of 120 hours — interesting that they measure it in hours — roughly five days.

The member is right. In standard testamentary instruments, solicitors will opt for 30 or 60 days. That option, of course, still remains to those who choose to execute those documents.

Section 8 approved.

On section 9.

L. Krog: Section 9 contemplates that if a right to receive property is conditional upon the beneficiary surviving and "the beneficiary dies at the same time as the other person or dies in circumstances that make it uncertain which of them survived the other, the beneficiary is conclusively deemed to have predeceased the other person."

This, I believe, does represent a change. Again, the rationale and other jurisdictions that have similar provisions? If in fact they do.

Hon. M. de Jong: The general reason, rationale, for the change, as is the case with many of these provisions, is an attempt to better reflect the will-maker's wishes.

I might be able to do this by trying to draw on a bit of a scenario. Sometimes that's the best way to analyze some of these circumstances.

We have person A, who is now deceased and has left a gift to B and C for life, and then to the survivor of
[ Page 727 ]
them. B and C die in circumstances rendering it uncertain which of them survived the other, and B is younger than C.

[1445]

The idea in that circumstance is…. The assumption is the testator — that is, A, the original person — did not mean to distinguish between B and C. Under the previous presumptions that existed in that scenario, one of them would have been preferred. So this provision is designed, as best one can, to preserve what would have been that testator's intention to have the proceeds split evenly between those two individuals.

L. Krog: If I can understand this, the way I read it. If a beneficiary is entitled to receive property and it's conditional upon the beneficiary surviving another person and they die at the same time as the other person or die in circumstances that make it uncertain, then what we're saying is the beneficiary is completely out of it. That's the way I read section 9(a). In other words, they don't receive the benefit.

Am I wrong in my interpretation? I'm sure the learned assistants to the Attorney General can assist me.

Hon. M. de Jong: I think, as it relates to 9(1)(a), the member's description is accurate.

L. Krog: With reference to (2). Again, I believe this represents a fair bit of a change. My reading of it is that if you have two or more beneficiaries and they all die at the same time and in circumstances that again make it uncertain which of them survived the other, unless there's something in the instrument that says to the contrary, then it's going to go equally to those beneficiaries. Fairly straightforward presumption.

Is that…?

Hon. M. de Jong: That is also a correct analysis.

Section 9 approved.

On section 10.

L. Krog: This is the fuller version, if you will, of the five-day survival rule, not making reference just to posthumous births, the children en ventre sa mere and those sorts of things. This makes the presumption that if you don't live the five days or a longer period provided in an instrument, you're conclusively deemed to have died before the deceased person for all purposes.

If you hold it as joint tenants and it can't be established, then half passes as if one person had survived the other — in other words, if they both died at the same time. So in theory, I would say, if I'm correct, a husband and wife killed in a joint accident…. Property doesn't pass to either estate, is dealt with separately. One half goes to the estate of one, and one half goes to the estate of the other.

Is that essentially the interpretation?

Hon. M. de Jong: Again, I believe that is correct.

L. Krog: Just so I'm absolutely correct. So what we're really saying is now that if you don't make it to that fifth day — so one of you is killed, the other seriously injured — on a joint account, then again, it's going to go one half to the estate of one, one half to the estate of the other.

[1450]

Hon. M. de Jong: Yes to the member. It is as if one would have predeceased and the disposition is as the member has described.

L. Krog: I'm not being critical of the reform of the law, if you will, but I come back to my point made yesterday during the course of debate. That is that this is a remarkable change in terms of how the average person…. If they understand joint tenancies at all, it's a remarkable change in even that understanding. I come back to my point about public education. It's great for the legal community, notaries and explaining to their clients, but not everybody comes through your door for a bit of legal education.

Again, I want to emphasize to the Attorney General that if we're going to make these remarkable changes, then we have to ensure that the public's aware of it. I think the Attorney General knows from practice himself that people have a very basic understanding of a joint tenancy, joint account. I die; you get it. You die; I get it.

Joint tenancy in a home. That's the way the vast majority of couples — married, common-law, same relationships — in this province hold their property. It's sort of a remarkable concept, because unless I'm mistaken — and I will flip back — "property" means "land and personal property." I don't think there's a different definition for property in this section.

Is my understanding correct that this will apply to joint tenancies and real estate as well?

Hon. M. de Jong: That's correct.

Section 10 approved.

On section 11.

L. Krog: Just to confirm, this section essentially means that the change to the joint survivorship rules that people commonly understand, which have existed arguably for hundreds of years in our legal history, won't, in fact, apply with respect to anything involving insurance. I'm just wondering if the Attorney General can explain what does that mean?
[ Page 728 ]

Hon. M. de Jong: I think two parts to the answer. One is that the literal interpretation is the correct one, and that is that the rule set out in the Insurance Act will govern insurance proceeds. I'm further advised that although they are not identical, the general presumptions set out in this part as it relates to survivorship rules closely follow the general presumptions set out in the Insurance Act, but it will be the Insurance Act that governs insurance proceeds.

Sections 11 and 12 approved.

On section 13.

L. Krog: Just so that I'm fairly clear, section 13, — and this division 3, for that matter — makes reference only to property covered by the Nisga'a government chapter of the Nisga'a final agreement, — that this is strictly in order to protect the cultural property of the Nisga'a people.

[1455]

Hon. M. de Jong: The member is correct and will note also that there are sections coming up that make reference to treaty first nations, which would include first nations like the Tsawwassen and Maa-nulth.

Section 13 approved.

On section 14.

L. Krog: Just to make reference to what the Attorney General has told the House, section 14 is a contemplative section, so it's obviously designed to take into account those treaties that have already been approved, such as the Tsawwassen, but also any treaty as long as it uses the language specific to this section. Is that correct?

Hon. M. de Jong: A slight variation on that. The way we tried, through the Interpretation Act, to develop this is…. The magic will be in the use of the term "treaty first nations." So where those agreements are signed between the Crown in the right of the province of B.C., the Crown in the right of Canada and a treaty first nation, the objective is to have that group, that first nation, captured by these provisions.

Section 14 approved.

On section 15.

L. Krog: With reference to section 15, again, we are back to dealing strictly with the Nisga'a peoples and how notice is to be properly given to them with respect to any claims that they might have. I take it that it applies only to Nisga'a peoples themselves and with respect to a Nisga'a citizen.

Hon. M. de Jong: My understanding is that what triggers the entitlement to notice and involvement standing for the Nisga'a Lisims Government is a case involving the will of a Nisga'a citizen as that is defined in other legislation.

Section 15 approved.

On section 16.

L. Krog: I wonder if the Attorney General can just explain the effect of section 16. My reading is that it simply extends rights under the Wills Variation Act or division 6 of this act to Nisga'a citizens. Is that essentially it?

Hon. M. de Jong: The section is designed to ensure that the Nisga'a and a treaty first nation government are provided with notice of a wills variation action. If that's going to be heard, if it involves a Nisga'a citizen, then Nisga'a government is entitled to notice. A citizen of another treaty first nation — that treaty first nation, as well, would be entitled to notice.

L. Krog: I wonder if the Attorney General can explain the point of allowing for notice. Is it to deal with the issue of cultural property? Is it to deal with the issue of jurisdiction, some combination of that, or other reasons?

[1500]

Hon. M. de Jong: The sections are designed and included as a means of taking into account the collective nature of ownership of some items of personal property or artifacts. A talking stick, for example, may not attract the same ownership that we might assign to it within a first nation. There may be an element of collective ownership. The sections are designed to try and provide a means for giving expression to that where actions come before the courts.

Section 16 approved.

On section 17.

L. Krog: Just to be clear with respect to section 17, that is simply ensuring that there's no question that a Nisga'a citizen is captured by the same benefits, if you will, of the small estate sections of the statute. Notice, likewise, must go to the Nisga'a government again, I presume, on the same assumption that we're trying to protect what may be culturally sensitive artifacts or where there's a question of collective or community ownership.

Hon. M. de Jong: That's correct.

Sections 17 and 18 approved.
[ Page 729 ]

On section 19.

L. Krog: With respect to section 19, does this represent any change from the existing law?

Hon. M. de Jong: I'm looking also at the existing section 99. I don't see any substantive change. The language is not exactly the same. It is designed to promote uniformity with the laws of other provinces. I don't see any substantive difference.

Sections 19 and 20 approved.

On section 21.

L. Krog: This section includes a couple of definitions, including the one for household furnishings. I just wonder if the Attorney General can confirm that in fact, that definition represents no significant change from section 85 of the existing act.

Hon. M. de Jong: I don't see household possessions in the definitions section of the Estate Administration Act. Why don't I check? I'm not in a position at this point to say whether it's different or whether there was a definition. Let's check on that, and I'll endeavour to get back to the member.

L. Krog: I appreciate the Attorney General's commitment.

This section, by definition, is again a remarkable change from the existing law. In British Columbia now a surviving spouse is entitled to a life interest in the family home — the first $65,000 — and then, if there's one child, shares the residue 50-50 with that child and, if there's more than one child, one-third to the surviving spouse. The rest is divided amongst the children, regardless of the number.

[1505]

Given — and I come back to my point from the other day — that you establish a spousal status in this province by living together in a relationship for two years, I would hesitate to use the term "you've hit the jackpot." But in some respects you may well have hit the jackpot in a very short-term relationship, based on the statutory definition. Although it may well work in — how shall I say? — an appropriate manner in many cases, in others what it means is….

For instance — and the Attorney General can correct me if I'm wrong — say I'm divorced or I'm a widower. I have two children. They're, say, 19 and 20. They're embarking on university. I don't have a lot of money. I've lived with my common-law spouse for two years. I die. My estate is worth $200,000. My reading of this section is that $150,000 goes to my surviving spouse of two years. Of the rest, $25,000 goes to her, and the remaining $25,000 is divided between my two children.

I just wonder if the Attorney General can confirm whether or not the example I've used is accurate and whether my interpretation of this section is accurate.

Hon. M. de Jong: Let's deal with it in reverse. I think the division that the member has presented is accurate. The member has some thoughts and has used some language that I may not incorporate as fulsomely in my answer, but let's be clear. Under these provisions in the simplified example, that would be the division.

I think the Law Reform Commission, dating back to the early '80s and the institute more recently, in making the recommendations that have been adopted and included in the legislative package, consciously was promoting the notion that the share of the estate to which a spouse should be entitled on an intestacy should be increased from where it was. That, obviously, is reflected.

At the same time, an attempt is made to take into account and balance the fact that today there are many mixed families. The member has described one such example, and there's any number of similar examples that we can think of, taking into account situations where the children of the deceased are not children of the surviving spouse and ensuring that some provision is made there as well.

But there's no doubt that the recommendations and the approach reflected here place great value — and that probably is the correct term — on the notion of spousal survivorship, and it's quantified in a significant way.

L. Krog: To continue. As I understand it, in Saskatchewan they've got a preferential share at about $100,000, I believe, and in Ontario at $200,000. So British Columbia will have a two-tier system, if you will.

The way I read this section, the spouse — common-law, married, whatever the case may be — has $150,000 off the top. If they have children together — again, whether they're married, common-law, a marriage-like relationship — the first $300,000 goes to the surviving spouse, and then the children would share the residue after the $300,000. That's my understanding of this section, and I just want to confirm that.

Hon. M. de Jong: I think the member's description is correct. I lost a bit of track halfway through the example. But to the extent that he described a difference in situations where the surviving children are common to both spouses versus a situation where the surviving children are not the children of the surviving spouse, there is a differentiation that I think the member accurately described in presenting his question.

[1510]

L. Krog: Just to confirm, I take it that…. Obviously, the government is leaving it open to increase that
[ Page 730 ]
amount — the same with respect to small estates as well — and that it is an amount that can be a greater amount if prescribed.

So that would be by regulation in due course?

Hon. M. de Jong: That's correct.

L. Krog: I'm just curious to ask. It specifically says: "or a greater amount if prescribed."

I'm wondering why the government didn't consider the possibility that, in the exercise of this particular change — and experience provides numerous situations that might not be very appealing to the average citizen of British Columbia, particularly the children of deceased persons whose parent got into a fairly quick and rough-and-ready relationship….

Why didn't the government consider saying simply, "or a different amount if prescribed," as opposed to being so confident the $150,000 should be the minimum that the government hasn't allowed itself an opportunity to in fact raise and/or lower that amount?

Hon. M. de Jong: I think the short answer, given our history over the past century, is that inflationary trends would suggest that the ability to move the amount upward by regulation is a more likely scenario than the one described by the member. But I'm not ruling out the possibility he describes. The fact is that it can be changed, but it would require this chamber turning its mind to the amount in a very purposeful way, as opposed to by regulation.

Section 21 approved.

On section 22.

L. Krog: This section deals with a situation: "If 2 or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree" — which, with great respect I might suggest, is not overly likely in the case of a partner who is married to someone who has to share with the common-law mistress, if I may use the term in a somewhat sexist example; that's not likely to happen — "or if they cannot agree, as determined by the court."

It then goes on to provide that if "2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision."

I'm just wondering if the Attorney General can provide some example of where he would see this spousal situation arising and whether the language used in this section is going to in fact invite more litigation than it is going to settle.

[1515]

Hon. M. de Jong: I am reminded that the distinction here, with 85.1 of the Estate Administration Act, which drove these disputes to court necessarily, is that section 22(1) has expanded upon that format by encouraging the members to endeavour to seek some form of negotiated or mediated agreement — though I can imagine, as the member points out, the difficulties that might ensue in bringing parties together and the circumstances that would make this section relevant.

Nonetheless, unlike section 85.1 of the Estate Administration Act, some thought has been given to encouraging the parties here to find some means for reaching an agreement short of appearing in court.

L. Krog: I'm probably a bit obtuse today, and I'm sure the Attorney General will be kind.

Interjection.

L. Krog: The member from Malahat whatever doesn't agree, but that's beside the point.

I'm trying to contemplate the situation. When you go back to the definition of "spouses" under the act, you have to be married or you have to have lived in a marriage-like relationship for at least two years.

I take it we're contemplating the situation where you may indeed have…. I think it becomes a bit difficult, because if you separate for at least two years, in the case of a marriage, then you're not together. You're not a spouse. In a case of the marriage-like relationship, it can occur if one or both persons terminate the relationship. I'm just wondering whether we'd be able to get into this situation.

Hon. M. de Jong: The scenario that seems to emerge is a situation where someone has been legally married, has not yet dissolved that or triggered the formal dissolution of that and yet, at the time of passing — at the time of their death — also has a common-law spouse of two years who acquires entitlement.

So that's roughly the scenario we can think of that would render this applicable.

L. Krog: I'm just trying to get a grasp on the practical example of this in light of what the act says.

If you're married, and you've lived separate and apart for at least two years with just one of you having the intention to do so, then you're no longer a spouse. That's what section 2, the definition section, says.

In order to become a spouse, you have to have lived together in a marriage-like relationship for at least two years. So are we talking about a situation of bigamy, or are we missing an intersection here somewhere?

I think the Attorney General is getting my point on this, and I'm just trying to grasp and get my head around this concept when you would have this intersection where two spouses would in fact have a claim. Or
[ Page 731 ]
does the Attorney General see it as legally possible that one can be — what? — spending six nights here and seven nights there and swapping back and forth?

[1520]

I mean, this almost contemplates bigamy in some respects, the way I'm seeing it, but I'm sure the Attorney General can assist me.

Hon. M. de Jong: I think the best way I can try to answer this in terms of legislation that, by necessity, tries to account for every conceivable circumstance…. The possibility that a relationship has commenced and satisfied the spousal definition prior to another relationship ending — such that the person no longer qualifies under a different definition of spouse, as unlikely as it may be — could occur. I'm not sure I embrace the description or the example the member gives, but maybe. So the challenge is to take account of circumstances, however unlikely but possible.

L. Krog: If the Attorney General will forgive me for putting it this way, you can have your cake and eat it too, arguably. You get to retain the status of marriage in the lawful, traditional sense and at the same time be in a common-law spousal relationship recognized by this statute at exactly the same time.

If the Attorney General can give me a better example. I can't see, given the timing — the two years and the living separate and apart…. I just want to hear an example that can explain to my very simple mind how this is ever going to function, given the way the act defines spouses.

Hon. M. de Jong: Two things. First of all, this notion of two or more entitled spouses is not new. It did exist in the previous act, so to that extent the drafters have not developed a new concept.

The hon. member began his question and submission with the old adage about having the cake and eating it too. Actually, the person having the cake is dead, in this example.

So a situation where, unknowingly, two relationships have existed, overlapping contemporaneously — perhaps the two unknowingly, perhaps not — and two people satisfy the definition was something that the Estate Administration Act considered and thought important enough to include in their provisions and the institute and the drafters of this document felt needed to be preserved. As distasteful or tawdry as it may seem, the possibility that an individual or two individuals might find themselves in this situation requires, we believe, the inclusion of the provision.

L. Krog: I hate to belabour this, but I'm trying to reconcile the language very specifically. If we go back to section 2, it says that they are "spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time…." The relevant time is the time of death of the deceased person, and "(a) they were married to each other, or (b) they had lived…in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for at least 2 years. (2) Two persons cease being spouses…for the purposes of this Act if…."

[1525]

In the case of marriage, they actually have to live "separate and apart for…2 years with one or both of them having the intention, formed before or during that time, to live separate and apart permanently" and "in the case of a marriage-like relationship, one or both persons terminate the relationship."

I'm not sure how you can live separate and apart and be in a marriage-like relationship. Somebody, it seems to me, has to lose the right here. I'm just trying to figure this out.

[C. Trevena in the chair.]

Hon. M. de Jong: This seems to be built around the legal proposition or interpretation that in order to live in a marriage-like relationship with A, you need not to have conclusively resolved or intended to terminate a marriage-like relationship with B. As implausible as that may sound, that apparently is the legal principle or legal argument that lies at the root of including the provision.

L. Krog: I guess my difficulty is — and perhaps I'm being too moralistic in this sense — that if your spouse essentially abandons you but doesn't say it's over, and you've been married to them for 30 or 40 years, you then have to face the prospect under this section…. The Attorney General may make reference that it exists now, but this is new law, and we're reforming the law.

This supports the proposition that the person they go off and live with for a couple of years — and that's all it takes, a couple of years — has a claim on the estate that the loyal spouse, if you will, built up with the deceased person over perhaps 30 or 40 years.

The Attorney General can correct me if I'm wrong, but that's my interpretation. We're essentially saying: "That's okay. As a society, we won't pass judgment on the relationships involved." But we will say to the loyal spouse — if I may call them that — that you helped build it all up, but your spouse, male or female partner, goes off and spends two years, and that's all it takes — two years with somebody else.

Then the person they spent two years with, who may well know of the existence of the loyal spouse, is going to share in the estate. That's what this says, and if I'm wrong, the Attorney General can correct me.

[1530]
[ Page 732 ]

Hon. M. de Jong: I think it's legitimate for us to walk through what some of these provisions are. In the example the member has given, one thinks through some of the other mechanisms at play and the entitlement of the loyal spouse on separation proceedings, divorce proceedings, to share in the matrimonial property, take an equal share in the matrimonial property.

In those circumstances, one presumes that the loyal spouse would be entitled, upon dissolution of the relationship, to half of the matrimonial property — at least half of the matrimonial property, depending on the disposition of that. I'm not quarrelling at all with the member exploring the implications of some of the proceedings. In that circumstance, in that example, there are some other protections that exist for the loyal spouse, to use the member's term.

L. Krog: I appreciate that they do exist, but in the case of the loyal spouse, for instance, and referring to the case of marriage, the definition section makes specific reference to "an event occurs that causes an interest in family assets, as defined in Part 5…to arise."

"I don't want a section 57 declaration. I want this 30-year relationship to continue, so I haven't signed it, and I won't sign a separation agreement." In the meantime, my wife, my husband, my partner is off engaged in this new relationship.

What this act does is specifically recognizes, by definition, that potentially what would have been entirely mine if my spouse died, as the loyal remaining spouse, is now going to be shared with the new partner. That's exactly what this is.

I just throw out to the Attorney General that…. I'm not speaking for myself in terms of my own sense of morality, but I think it's important, as we debate this today, that British Columbians who are watching need to understand that this is what the law of British Columbia is saying — and will be, assuming this act passes.

Hon. M. de Jong: The law as it will be, and the law as it is now and has been for some time — and, of course, again, in the circumstance, the example, that the member has brought to the floor…. In a similar situation, where the spouse who has moved from one relationship to the other chooses to stop by a law office or a notary and complete a testamentary instrument, the situation may be very different indeed.

I appreciate the fact that the member is taking seriously the fact that there will always be circumstances that these provisions apply to, and it's worth exploring what they are.

Section 22 approved.

On section 23.

[1535]

L. Krog: This provides a somewhat different provision than exists under the Estate Administration Act today and refers to degrees of kinship. I'm just wondering if the Attorney General can put in simple language what this means.

The way I interpret it, if you die without leaving a spouse…. You've already dealt with the spousal situation. If a spouse dies with no children, in section 20 — or, pardon me, no surviving descendant, properly speaking — then the spouse gets the whole estate, and that's been the law forever.

This section provides, obviously, that it goes to the intestate's descendants and, if there's no surviving descendant, to the intestate's parents in equal shares.

A descendant is a somewhat broader scheme and, by definition, means "all lineal descendants through all generations." In other words, it will follow it down. If you've got two children, it will go equally to them. If you've got a child and a deceased child with grandchildren, again it goes down the lineal line all the way.

Unless I'm mistaken, we won't get past the fifth or greater degree, because under section 23(3): "…persons of the 5th or greater degree of relationship to the intestate are conclusively deemed to have predeceased the intestate, and any part of the intestate estate to which those persons would otherwise be entitled must be distributed to other descendants entitled to the estate."

In other words, if I'm as old as Methuselah and I've got six generations down, we're not going to get to the sixth generation. We'll go down to five, if all my kids and my grandchildren and everybody else are predeceased, but that's as far as we go. Is that correct?

Hon. M. de Jong: A specific correction, and I think an important one. Under subsection (4), in the example the member has given, the lineage through grandchildren, great-grandchildren extends as far as you can trace directly — great-great-great-grandchildren and beyond. Where the limitation exists is when we head off into a different direction.

L. Krog: I appreciate the explanation of the Attorney General.

Just so I'm clear, subsection (4) says:

"Subsection (3) does not affect (a) the right of an intestate's descendants to inherit the intestate estate even though they are of a greater degree of relationship than the limit imposed by that subsection, or (b) the right of a person to apply under the Escheat Act on the basis of a legal or moral claim against the former owner of an estate that has escheated to the government as property to which no person is entitled to succeed as the owner."

Can the Attorney General just explain the meaning of those two sections?

[1540]

Hon. M. de Jong: I think we dealt with the member's question as it relates to direct heirs — grandchildren
[ Page 733 ]
and great-grandchildren and so on. If (4)(b) relates to circumstances in which there are no descendants and no other heirs within that four-degree period, and provides for a situation where property then passes to the Crown via the Escheat Act, there is provision made here for an application by what would, by necessity, be a remote relative to have a claim to that property considered by the Attorney General, and that would take place under the Escheat Act.

What I have asked the officials here to try to ascertain is whether or not a provision of that sort exists in the Escheat Act now or exists elsewhere in testamentary legislation. I'm just not aware, off the top of my head, where it does. But that's what this provision would do.

L. Krog: I know I'm belabouring these points somewhat, but I think it's important that…. The presumption is that if the opposition critic doesn't understand this stuff, then hopefully, there will be at least ten other British Columbians who will need assistance in understanding what this means.

Sub (3) talks about…. "For the purposes of this section" — in the broadest sense — "persons of the 5th or greater degree of relationship to the intestate are conclusively determined to have predeceased the intestate…." The way I understood the Attorney General's explanation, that would mean that notwithstanding what subsection (2)(a) says, it would be distributed "to the intestate's descendants," which takes us down lineally….

Did I understand the Attorney General to say that, in fact, we ignore subsection (3), or that subsection (3) applies and that's as far as we go? Just so I understand it, it's so that in fact if you've got someone to the sixth degree, they're out of luck, but if you've got someone in the class of the fifth degree, they're in luck. That's as far as the residue is going to drift down, so to speak.

In other words, if you've got the great-great-great-grandchild, but you've got a great-great-great-great-grandchild that died and left a child, that child is out of luck, but the great-great-great-grandchild is in luck. Is that the way I interpret this section?

Hon. M. de Jong: I apologize. I'm certain I was unclear.

Under subsection (4), it has the effect of exempting an intestate's descendants, and if we use that term "descendants" to mean children, grandchildren, great-grandchildren — lineal descendants…. In the example the member's given about the 120-year-old deceased, in this case, that can stretch without limit. Those heirs, those descendants, lineal descendants, are exempted from the cutoff referred to in subsection (3).

That exemption does not extend when we move out to the side — to cousins, second cousins. There is the fifth-degree cutoff referred to in the section.

I'm still worried that I'm not answering in a way that assists the member.

L. Krog: I think I've got the Attorney General's point, but I'm going to try and repeat it back to him in a way that perhaps both of us, and the officials who are so ably assisting us here today, can be satisfied that we're all talking the same language.

[1545]

Subsection (4) says: "Subsection (3) does not affect (a) the right of an intestate's descendant to inherit the intestate estate even though they are of a greater degree…than the limit imposed by…" subsection (3). So in other words, we'll go down seven generations, and there's a class of folks — there are, say, three of them, and they're lineal descendants. If there's nobody else, they get it. It doesn't stop at the fifth.

But if there were two lines of descendants, we get down to the fifth degree, and they're alive, but on the other side, the fifth degree has predeceased and has a sixth degree living below them. What, in fact, happens to the estate is that it goes to the surviving fifth, but the sixth is out of luck.

Is that the way you interpret this section?

Hon. M. de Jong: I think I understand the example. If both lines that the hon. member has described…. If neither of them are lineal descendants, then I think his example holds and the result holds.

L. Krog: Notwithstanding what subsection (3) says, and that's where my problem is…. Subsection (3) says: "For the purposes of this section, persons of the 5th or greater degree of relationship…." Maybe I'm missing the point around the degree of relationship.

If we're talking degrees of relationship, does that mean that language only applies at law? I don't know this, so this is a question. Does that only apply to persons when you're going backwards, so to speak, to parents and out to nieces and nephews and aunts and uncles? Does that language only apply in those circumstances?

If that's not what it means, then the plain interpretation of subsection (3) is that you go down to five, and you're done.

What I'm saying is if you've got two lines of lineal descendants, you know…. I had a son and a daughter, and I finally passed on at 144. We've got them down to five on one side. The five on the other side is gone, but they've left a sixth layer, so to speak. The way I read this section, the surviving fifth layer gets it. The surviving sixth doesn't.

Hon. M. de Jong: Two things that I need to alert the hon. member to, to perhaps further murky the waters.

We do have to read the section, I'm reminded, in conjunction with section 24, which relates to distribution. The other point that perhaps the…. The member began his
[ Page 734 ]
question by referring to legal definitions and legal meanings of terms. "Descendant," as it is used in subsection (4), is a defined term and speaks specifically to lineal descendants through all generations. In fact, that is the definition. So to the extent that there is that exemption, that should be fairly clear. On the distribution side, I'm reminded that we have to take into account the provisions of section 24 as well.

[1550]

L. Krog: To come back to my point. In the example I've used, you're dealing with a deceased person who had two kids. His children have died. Both children had children. The grandchildren have died. Both sets of grandchildren had children. They've died.

We're down to the fifth. On the daughter's side, the fifth generation, if you can call it that, has passed away. On the son's side, the fifth generation is alive.

Does subsection (3) mean that the surviving fifth on the son's side get it, and the daughter's fifth — who are predeceased but have left children; in other words, we're down six generations now — don't?

If I may just have the attention a moment further…. That's because you're saying section 24 saves us from that possibility.

Hon. M. de Jong: I think the answer is yes.

L. Krog: I'm delighted. I think the Attorney General has agreed with my interpretation of this section. I'm thrilled. I say that only in a half-joking way, because there are a whole pile of lawyers in British Columbia who may be confronted with this as medical science improves. We may face this remote — very remote, admittedly — but indeed legal possibility that you will get to that situation.

Having said that, I think we have fairly beaten section 23 to death.

Sections 23 and 24 approved.

On section 25.

L. Krog: Just to be clear, this is just the capturing section that says that if I've somehow drawn a will in such a way or there's some asset available that isn't disposed of by will or isn't the subject of a gift, then what we're saying is the intestate provisions apply to that.

Again, we'd count down the generations, all of that. In other words, the whole…. The intestate provisions apply to something not disposed of by will. It's fairly straightforward, existing law, and nothing's really changed. Is that essentially it?

Hon. M. de Jong: That is correct. The intestacy provisions would apply with respect to that property not covered by the testamentary instrument.

Section 25 approved.

On section 26.

L. Krog: I appreciate that some of the members wish to get through this section somewhat more completely, but we have a long lifetime ahead of us, I'm sure, and we'll be able to handle it.

This, again, is a significant change from the existing law. It applies to an intestate estate that includes a spousal home. A spousal home, as was discussed yesterday with the Attorney General, includes, as he advised me today, potentially even a fifth wheel and covers a whole series of things that would constitute a residence.

[1555]

Again, it only applies in the situation of an intestacy or in a situation where it hasn't been disposed of by will. What it says is "…the surviving spouse may acquire the spousal home from the personal representative to satisfy, in whole or in part…."

The way I read it is that she or he has the right, and they may choose to exercise it, but it's not that they have to take the spousal home. Is that essentially the interpretation?

Hon. M. de Jong: That's correct.

Section 26 approved.

On section 27.

L. Krog: Again, as this section deals only with intestacies, as I understand it, what section 27 means is that the personal representative, the person who applies for grant of letters of administration — whatever…. That person has to give notice to the surviving spouse of this specific statutory right. In other words, they do have the option to demand that in order to satisfy their share of the estate or further claims under this section, they're entitled…. They have to receive that notice.

I would presume the same kind of provisions apply now as exist in practice. If you can't file an affidavit saying that you've sent a notice to everyone entitled under the Wills Variation Act, under the Estate Administration Act, you can't get a grant of letters of administration.

This section is essentially saying the same thing, except in addition, you have to have the further provision that you give them literally a copy, potentially, of this section of the statute saying that you have the right to claim the home.

Hon. M. de Jong: The member is correct that this specifically and statutorily requires the personal representative to inform the spouse of his or her right to receive the spousal home. As it relates to the spousal home…. I'm not sure there's a similar provision existing now as it relates to the spousal home.
[ Page 735 ]

L. Krog: No, the Attorney General is quite correct. It relates to the entitlement of a surviving spouse — period. But this is a more specific…. And I would imagine it's going to come in addition to the notice the way most lawyers understand it now. It will be a very specific addition that you will…. I shouldn't say "lawyers," but lawyers or personal representatives will have to send a specific notice advising the spouse of the deceased intestate that she or he will have a specific right to exercise the option to take part of the home as part of their share of the estate.

Hon. M. de Jong: Yes, that will be a formal part of the process. I'm advised that some thought has been given to actually particularizing the form of notice that may be required under the Supreme Court rules.

Section 27 approved.

On section 28.

L. Krog: I see that there's a saving provision here as well, unless I'm mistaken, that the personal representative, much as a representative — an executor now, for instance — is prohibited from disposing of the family home within six months of grant of letters probate, because of the provisions of the Wills Variation Act.

This now applies with respect to an intestacy so that you don't get to dispose of the spousal home within 180 days — in other words, within six months — of the grant unless you've either received the consent of the surviving spouse or "… the spousal home are not sufficient to pay the debts and liabilities…."

[1600]

I'm just curious, but I'm going to assume…. The assumption is that if the spouse can't be located, then is there some provision — and perhaps I'm missing this — for notice to be given to them?

It was a loose and funny marriage, and the husband or wife is off travelling in Southeast Asia. It's impossible for me as the personal representative to give them formal notice. Is the assumption that the same provisions around the registrar of the court or the court itself being able to order some other form of giving notice…? Is that contemplated?

Hon. M. de Jong: I think I understood the member's question this way. Where a personal representative is seeking to discharge the responsibilities they have with respect to the spousal home under the provisions we're dealing with but is unable to do so, what options does the personal representative have? Is that the question? The member is indicating that is so.

L. Krog: What I'm thinking of is a situation…. Perhaps it's a falling real estate market. These things happen in British Columbia on occasion. I know as a personal representative that my responsibility is to get the best value out of the estate. I can't locate the spouse to whom I must give notice in this intestacy of her right or his right to make a claim. Unless there's some specific provision or the rules allow for it — and I think that because it's procedural, maybe it can be done by way of a change to the Supreme Court rules — I'll be in a situation where if I can't do that, I'm hanging on to this house in perpetuity.

Even though there are other assets to pay the debts of the estate…. That's already contemplated here, because this section talks about, in section 28: "…unless assets other than the spousal home are not sufficient to pay the debts and liabilities of the estate…." Nevertheless, I have this duty as a personal representative to get the best for the estate.

I'll give a concrete example. I've got $200,000 in a bank account, I've got a home worth $300,000, and the market is going in the toilet. Does this mean that if I can't find that spouse to give him or her notice, I have to sit idly by, if you will, and watch the property value decline by 50 percent like it did in the early '80s in British Columbia within a matter of a few months?

Or is the Attorney General satisfied that this is a procedural matter, and you can deal with this issue in the rules? For instance, a judge, a registrar of the court, now has the ability to say, "You know, you've done your best. You can give notice to the spouse or a child of a deceased person by publication," or whatever.

[1605]

Hon. M. de Jong: The key here, of course, is the application for representational status and, in order to achieve that from the court, from the registrar, to have fulfilled the obligations under the act. One's expectation in the majority of cases is that the representative would provide notice to the surviving spouse. Now, in the scenario that the member has described, the person seeking the grant of representative status is experiencing difficulty in doing that. Does that extend in perpetuity while the value of the asset declines?

My advice is that the inherent jurisdiction of the court to provide procedurally for an order for substitutional service would operate to allow the person seeking the grant of representative status to seek an order that would allow them to fulfil their obligations under the act and then deal with the asset.

L. Krog: That's essentially what I'm looking for from the Attorney General — some assurance that we agree it is a procedural matter that could be handled by the rules of court. I think the Attorney General appreciates the kind of scenario I've raised, but that he is satisfied in speaking to this House that it will be a procedural matter and that the rules of court — which will obviously be
[ Page 736 ]
changed, assuming this act is passed — will in fact be able to deal with the very scenario that I have raised.

If we're satisfied, that's great. We can move on.

Hon. M. de Jong: I think the relevant question, the one that the member is also posing, is: are there any impediments in this section, or are there any impediments in the act, that would preclude a solicitor or someone seeking a grant of representative status to go before the court and say — via the rules, via those procedures: "I understand what my obligation is under the sections of this legislation. I have endeavoured in the following ways to fulfil those obligations. I have been unable to. I am seeking an order providing for substitutional service or some other confirmation of how I can discharge that duty to the satisfaction of the court and get on with dealing with the assets"? We believe there are no such impediments.

L. Krog: One of the reasons I was raising this — and I hate to skip ahead — is that under division 3, "Application for grant of probate or administration," on page 51 of the bill, the provisions are fairly similar to what exists now. It says:

"An applicant for a grant of probate or administration must give notice of the proposed application to the persons referred to in the Rules of Court."

Then it says, at subsection (2) — a saving section:

"An applicant or personal representative who, in accordance with the Rules of Court, makes reasonable efforts to discover the existence, identity or whereabouts of persons to whom the notice under subsection (1) is required to be given, but is unsuccessful, is not liable for any loss or damage arising from not giving the required notice except for claims (a) to recover property or enforce an order, or (b) under Division 6…" of the Wills Act.

[1610]

I guess my point is this. Similar provisions exist now. You can't get a grant of letters of administration unless you've attempted to give notice to persons entitled on an intestacy. That's basically repeated here in section 121. But we now have a new obligation on the personal representative, and that is the obligation that they "must" — not may; must — "at the time an application for a representation grant is made, give notice to the surviving spouse of the right of the surviving spouse to acquire the spousal home."

What I'm getting at is: why don't we have — and if I've missed it, forgive me, and I've wasted the House's time — a similar provision or saving provision in the statute to protect me, arguably, from the scenario I've described, where it's a fall in real estate?

I think the Attorney General's assumption is that the rules of court will take care of it. I want to be satisfied that the rules of court will in fact take care of it, because I think the scenario I've outlined, the declining real estate market….

You can't find the spouse to give him or her this notice that they've got a right to the house. You can get the permission of the court to give them notice of the general application for letters of administration, if you will, to manage the deceased's estate. But in addition, you've now got this new obligation to give them notice of their right to claim the house. And I'm watching the house decline.

I guess I'm just wondering why we haven't treated these notices the same.

Hon. M. de Jong: Two things I might say in reply. We do believe that, to the extent that someone seeking to be a personal representative needs to satisfy these statutory obligations and was having difficulty doing do, the inherent jurisdiction of the court would allow that body to provide some relief.

The other thing, though, at a practical level, that I think the member is referring to is the concern that the beneficiary — the spouse — will come along at some point and say: "Well, it took three, four or five months to move this asset, and I have been prejudiced as a result. What took you so long?"

Well, I suppose in part the answer is: "I couldn't find you." From a practical point of view, I'm not sure how guilty I would feel saying to someone: "I'm sorry, I have to tell you that the sale of this has been delayed, but the reason it was delayed is because, in discharging my statutory obligation to notify you, I couldn't find you."

[1615]

L. Krog: I appreciate the Attorney General's comments, but accidents happen. I wasn't expecting my husband or wife to drive the car off the cliff on the way home from work as I was off attending to the needs of chimpanzees in the heart of the Congo and couldn't be located. You know, Livingstone did get lost for a while. So it just strikes me that….

Interjection.

L. Krog: Oh, that the member from Kamloops could follow this.

I think the Attorney General gets my point. You're treating things, frankly, differently. It seems to me where you're imposing a statutory obligation on someone on one side to give this notice and yet at the same time not relieving them of their duties as a trustee to accomplish the best they can on behalf of the estate, there's a bit of a dichotomy here. There's a bit of an issue.

I'll leave it to far greater legal minds than my own, but I'd like to think that the Attorney General's ministry and the senior staff and those able legal minds who inhabit it will be satisfied that the point I've raised is not going to present a problem for personal representatives that could be accomplished by a potentially simple and — how shall I say? — unopposed change just to protect the situation where I'm trying to do my job, and the market
[ Page 737 ]
is going down, and I just want to get this place sold rather than….

At least leave me in a position where I know that I've got the same saving provision as I do in section 121(2) if I did all I could to look for you and find you and determine…. It just seems to me that the same provision should apply in this situation just as it does now under the Wills Variation Act, potential claims under the Wills Variation Act. I mean, I've got to prove to the court that I couldn't find you to give notice and that I tried my best, so we published it in the paper or whatever.

I don't wish to belabour the point, but from what the Attorney General has told me…. I understand his argument about the parents' patriarchal jurisdiction and all of those sorts of things. But the court has got to look at this and say on the one hand that the government contemplated this, and you can look at the legislative record. This was pointed out, and it wasn't dealt with.

Surely if the Legislature in its wisdom had intended to give the court the power to remedy this problem, it would have done so. I come back to my point, and this is for consideration of staff. Is this so much a procedural matter that a simple amendment to the Supreme Court rules will save all of the issues I have raised?

Hon. M. de Jong: I in no way want to convey to the hon. member obstinance or a reluctance to take seriously the points that he raises during this discussion. One of the advantages of the process we intend to follow, of course, as we've discussed earlier, is that there will be an 18-month period.

I can assure the member insofar as he has drawn an accurate distinction between the provisions of this act and the mandatory requirements of it versus the mandatory requirements that occur elsewhere in the act but include alternate provisions for satisfying those requirements — that that is something I will pursue and pose questions about. If my expectation and belief that this can be dealt with procedurally via the rules of court is incorrect, happily we will have time to deal with it in this chamber.

Section 28 approved.

On section 29.

L. Krog: Just to confirm, this is simply the provision that sets out exactly how a surviving spouse gets to exercise that right — the right to make a claim on the spousal home, if you will.

[1620]

Just for purposes of this, the spousal home would only refer to a home which the spouses had occupied. It wouldn't be the family summer cottage, for instance, because of the definition section, which talks about shared or owned jointly by the deceased person in a corporation and provides that exclusively…. I take it that it talks about where they were ordinarily resident. Or does it, in fact, include the family cottage?

If you go back to "spousal home," it talks about a parcel of land that is shown on the tax roll, etc., has improvements situated on it and "a building assessed and taxed in the current year as an improvement, in which the deceased person and his or her spouse were ordinarily resident, owned or jointly owned by the deceased person and not leased to another person." I read that to mean that you had to be ordinarily resident there, so it won't include the summer cottage.

Hon. M. de Jong: That description is applicable and accurate. I think the other point is that the act only contemplates one spousal home.

L. Krog: Just to confirm, is it contemplated that in fact there will be a prescribed form for giving notice under section 29? Or is it worded in such a way…? It talks about how a notice must contain a statement of the value, and so on. Is there some intention for the government to assist the general public here, or will this be simply a matter of discretion for the persons wishing to make a claim?

Hon. M. de Jong: I haven't decided yet.

The Chair: Shall section 29 pass?

L. Krog: Sorry. I was up on 29. I appreciate the desire of the Chair to speed the proceedings along.

I just want to encourage the Attorney General to consider prescribed forms. If the whole intent of this legislation is to try, if you will, to bring into one statute and to simplify the process and make it more user-friendly, then surely it would behoove the government to consider a prescribed form for a notice of this nature.

In the changing world — with people often having serial relationships, the spousal home, not bothering to get a will, moving in and out — this will in fact probably become more common. Given that interest in real estate seemed to be one of the few things that, apart from the early '80s, doesn't descend in value, I suggest it may be a wise thing to consider.

With that, I am satisfied with section 29.

Section 29 approved.

On section 30.

L. Krog: Just to be clear, this section involves a situation where there's a dispute between the personal representative and the surviving spouse. It talks about the personal representative having to deliver "within a reasonable time,
[ Page 738 ]
a written response to the notice stating the value the personal representative places on the deceased person's interest" — in other words, in a situation where we've got a dispute, where there isn't agreement.

It then goes on to contemplate that in addition, a descendant entitled to share in the estate may apply to the court as well. The surviving spouse who exercises this right must apply to the court to determine the value of the deceased person's interest, etc., and unless the descendants entitled to share in the estate or that part of the estate agree in writing….

[1625]

Are we contemplating, then, that there should be notice given to the larger body of persons? In other words, because we are dealing with an intestacy, not only should the spouse and the personal representative be involved in the determination of the value, but also, I take it, the children — the descendants it's talked about.

I take it that under section 29, the spouse gives notice to the personal representative and to the descendants, so it's going to the children as well. Then under section 30 if the personal representative disputes that value, they have to deliver to the surviving spouse a written response stating the value they place, and if they can't agree, then the personal representative gets to apply to court for an order determining the value. Then it goes on to say that if the surviving spouse who exercises the right is the sole representative, "the surviving spouse must apply to the court for an order determining the value," etc.

So in other words, if you're both the personal representative and the spouse, you have to apply to the court to get the value. But unless I'm missing it, apart from that initial notice, the descendants who will arguably have an interest in this…. If I value it low when it's in fact worth more, I get a benefit. It doesn't appear that there's a notice required to go to the descendants apart from that initial notice, and I'm just not sure how it's contemplated how they can or will protect their interests.

The best example, I suppose, in the court situation…. "If a surviving spouse who exercises the right to acquire the spousal home is the sole representative," the surviving spouse has to apply for the court to determine the value of the deceased person's interest. That's unless the descendants entitled to share in the intestate agree in writing to its value — or part of it, etc., that is to be treated as….

It contemplates that, but I don't see something that contemplates the situation where the personal representative is separate from the deceased spouse and has received the notice from the deceased spouse about the value. It doesn't appear that they play a role in that situation after having received the notice from the deceased's spouse.

Hon. M. de Jong: I think the first point is this. The member is correct in pointing out the interest that descendants will have in the question of valuation. The way this is drafted and the way that it operates, the role of the personal representative is obviously very important because it is the personal representative who assumes the responsibility for advancing the interests of the estate and ensuring that valuation takes place in a responsible and accurate way.

[1630]

L. Krog: So what I interpret the Attorney General to say is that I'm right. Essentially, you can have the personal representative and the spouse agree on the value without any further notice to them other than the notice the spouse of the deceased intestate gave when she wrote back to the personal representative and said: "I don't agree with the value you've placed on it."

But once that's done, then the descendants, the lineal descendants — in other words, those persons other than the surviving spouse — are out of the picture. So the value will be established by the personal representative and the deceased spouse, which will in fact have an impact on the residuary value of the estate, which will obviously impact on what may be available under the intestacy laws now to be distributed to the deceased's children.

Hon. M. de Jong: I think that's the case. I'm not certain how different that is, except for the obvious importance of an asset like a spousal home, from the obligations the personal representative assumes with respect to the balance of the estate.

L. Krog: When you go to section 30(4), it says: "A descendant entitled to share in the estate or that part of the estate that is to be treated as an intestate…may apply to the court for an order determining the value…if the surviving spouse, being the sole personal representative, does not apply to the court for an order under subsection (3) within 180 days...."

It just gives a very narrow opportunity, if you will, to the descendants. I'll use the term "children" because I think that people listening might understand that better. It just gives a very narrow right. In other words, it's only where the spouse, who's got the priority share, is in fact also applying for letters of administration, if you will. That's the way I interpret this section.

Hon. M. de Jong: The member is correct about the narrow opportunity for descendants to intervene in the way prescribed in subsection (4) in circumstances where the representative and the spouse are one and the same and their interests may collide.

Section 30 approved.

On section 31.
[ Page 739 ]

L. Krog: This section makes reference to a situation where: "(1) If the fair market value of the deceased person's interest in the spousal home exceeds the value of the surviving spouse's interest…under section 21…." That's the section that deals with the $150,000 if you're a spouse and the deceased had descendants or, alternatively, if the deceased had no descendants, the $300,000 priority claim.

What that says is that as long as you exceed that value — whether it's the $150,000 or the $300,000 — she or he "may purchase the remainder of the deceased person's interests from the personal representative, or from those in whom that interest beneficially vests, in accordance with the valuation of the deceased person's interest…as determined under this Division."

In other words, we are giving a priority right to the spouse to ensure that, as part of her $150,000 or her $300,000, as the case may be, she gets to have the family home, if you will, or what may have been the family home, as part of her share.

When it talks about family home…. Going back to spousal home, the definition is where "the deceased person and his or her spouse were ordinarily resident." So in other words, you can be a spouse for the purposes of this section but not have been ordinarily resident in the family home and still be entitled to apply. Is that correct?

[1635]

Hon. M. de Jong: I apologize to the member, because I know he didn't do this on purpose. I didn't understand the question.

L. Krog: When this section talks about the spouse, the surviving spouse's interest, whether it's the $150,000 or the $300,000, the way I read this section is that she has a priority right to purchase the interest of the deceased spouse in what is described as the spousal home, I think. This definition of spousal home says that "in which the deceased person and his or her spouse were ordinarily resident."

What I'm saying — just to understand it completely — is that this may well have been the home in which the deceased was ordinarily resident, but the spouse who's making the claim against it, the priority claim to purchase the interest, wasn't ordinarily resident. That's the way I read this section.

Hon. M. de Jong: I'm not sure, in the example the member has given, given the definition of spousal home, that that would qualify as a spousal home insofar as I think the definition requires the deceased and his or her spouse to have been ordinarily resident there.

L. Krog: Just to go back to the definition of spousal home on page 9, it says spousal home means, and I'm shortening this a bit, "in which the deceased person and his or her spouse were ordinarily resident." So I take it we have to interpret that to mean they both have to be ordinarily resident as opposed to simply one of them living in it. Is that what the Attorney General is saying?

Hon. M. de Jong: That's how I'm reading that definition.

L. Krog: The section goes on to provide that before a surviving spouse can make application under section 33 to retain it, she has to provide financial information in prescribed form to the personal representative and the descendants entitled to share, etc.

What I interpret that to mean is that if the value of the surviving spouse's preferential share is insufficient to cover the fair market value, she would still have the right to purchase the remaining value, if you will. In other words, if my entitlement isn't equal to the value of the family home, I'm given a priority right to purchase the family home, because it's important to me, and I've got other cash to do it. Correct?

Hon. M. de Jong: That's correct.

Section 31 approved.

On section 32.

L. Krog: I'm just a tiny bit curious. Under this section, a surviving spouse who occupies the spousal home pending his or her purchase has to pay insurance, applicable taxes, reasonable and necessary expenses, rates and charges for electricity, fuel oil, periodic payment that falls under any mortgage in the spousal home and any bonus payment or penalty resulting from the prepayment by the surviving spouse.

[1640]

I'm just wondering what the rationale for this section is. In the ordinary course of events, the way I understand estates now, off the top the debts are paid.

In British Columbia today, in a situation where there's no will…. The wife has been killed. There's a mortgage on the family home. The husband will obviously continue to occupy it, presumably, but doesn't have to pay anything right now at law, arguably, whereas this section is saying quite specifically that you have to pay the mortgage. In addition to ordinary maintenance, you have to pay the mortgage, which is, in fact, a debt of the estate and is the estate's responsibility.

This is, as I understand it, a shift, and I want to understand the rationale for the shift.

Hon. M. de Jong: I think the rationale or the logic giving rise to the inclusion of this section related to the fact that whilst in the majority of circumstances, as the member has
[ Page 740 ]
suggested, there's a logical progression to these things, the drafters were cognizant of the fact that if the surviving spouse were able to reside in the house expense-free for up to six months after the grant was obtained, there would be an incentive to delay the decision to exercise their right to stay for the full six months.

Section 32 approved.

On section 33.

L. Krog: This again is a significant change to the law. Section 33 says that a surviving spouse, on application, can ask the court to make an order that includes the following: "(a) vesting the same interest in the spousal home in the surviving spouse that the deceased person had."

I take that to mean potentially more than the $300,000, which would be the maximum entitlement. I'm looking for advice on this: "(b) specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest in the estate; (c) converting the remaining unpaid interest to the descendants in the intestate estate into a registrable charge… (d) determining an interest rate, as that term is defined…" etc.

To try and simplify the point I'm making, this gives a power to a court in a situation where perhaps the home is worth $350,000, and there is no other asset. This gives the power to the court to vest the whole of the estate, in essence — the $350,000 home — in the name of the spouse without any further benefit to the children.

Now bear with me. I acknowledge that the sections almost contemplate that the court has the authority to give you the house but put a charge on it, so eventually when you die or sell or whatever, those kids will see something out of the estate.

But I don't read this section to limit the authority of the court, in a case it considers appropriate, to in fact give the spouse of the deceased intestate more than her $300,000, when it's her family home, and let her keep it without any responsibility to see some benefit flow to the natural children of the deceased intestate.

[1645]

Hon. M. de Jong: I wanted to review the provisions, and I think I understand the point that the hon. member is making insofar as the distinction between 33(1) and 33(2). I think, broadly speaking, the member is correct to point out that the nature of the order is described in subsection (2) and uses the language "may."

If I understand the member correctly, the concern that he's raising is the possibility that a court would make the order vesting title in the surviving spouse without regard for the interests of the descendants — the children, if you will. I think sub (d) in 33(1) obligates the court to turn its mind to the interests of the descendants, and then sub (2) provides the mechanism or the means by which the court can address that interest.

L. Krog: I appreciate the significant responsibilities that are placed on the court in order to determine it. But I'm trying to simplify some of these sections to the point where, firstly, I can understand it, and then hopefully, British Columbians can understand it and make it clear.

What this section potentially does allow is exactly what I've said, which the Attorney General has agreed is the case. In that situation where the family home, the home of the deceased, is of such a value that there isn't really anything else, then in fact the children, in theory, could be cut out if the court is satisfied that all the requirements of section 33(1) are met — that the assets aren't "sufficient to satisfy the interests of all the descendants…" and that the court is satisfied the spousal home would impose hardship on her or him and that the court is satisfied that it would be "a greater prejudice," etc. But essentially, my scenario is, in fact, correct.

I mean, it's an unusual change. Again, I simply want to emphasize that this is a change from the existing law — quite significantly so. You're getting the right to have vested in you an interest in property beyond what in a normal intestacy you would be entitled to receive.

Now, I understand that the trade-off is, obviously, that we've moved beyond the existing…. Well, we will move beyond the existing legislation where you get a life interest in the home — which, quite frankly, if it means you've got to live to 75 to get your share of your father's estate, so to speak, is an imposition as well.

But this is the compromise, as I see it, and that is that in fact, this matter…. It can be dealt with, and you're cut out, and you know exactly where you stand.

[1650]

That's the flip side of this — that what I'm saying is correct. You can lose the only interest you may have in your father's or mother's estate if the court is satisfied that the requirements of section 33 have in fact been met.

Hon. M. de Jong: Well, the member's observation has provoked in me a desire to return to the law institute report and verify the extent to which there is specific commentary. It's a balancing act — right? — between preserving the discretion of the court…. One can think of circumstances, I suppose, where the kind of order that we've just been talking about would make sense. Then, conversely, the desire….

It would be an extraordinary circumstance, by definition, where a court says, as the member has described: "I am making this order, vesting this asset that is of greater value than you would otherwise be entitled to as a surviving spouse, and I do so for the following reasons." Generally speaking, one's expectation would be
[ Page 741 ]
that the court, in doing so, would say: "But I am going to protect the interests of the children by attaching one of the caveats or conditions, orders, referred to in 33(2)."

The presence of the word "may" interests me. The best I can offer the member today is to assure him that it interests me enough to cross-check what specifically the law institute may have said about this.

L. Krog: I appreciate the Attorney General's explanation. I'm prepared to let 33 go, and then we're dealing with 34. There will be some questions in reference back to 33, however, that relate to this determination.

Just to make clear what I'm talking about. Section 33, which allows for retention of the spousal home, gives the court a number of specific powers. It may, "subject to any terms or conditions the court considers appropriate" — so it can be subject to other terms and conditions — "make an order doing one or more of the following."

It talks about vesting, "specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest…." In other words, it's a situation where the court has looked at it and said: "You know what? You're going to get it, but you're going to have to pay the children of the deceased X amount of dollars."

When we go on to section 34, it talks about:

"A registrable charge referred to in section 33 (2) becomes due and payable in the circumstances specified by the court, having regard to prevailing residential lending practices…but if none are specified, becomes due and payable on the earliest of the following: (a) twelve months after the…death of the surviving spouse; (b) twelve months after the date the surviving spouse ceases residing in the spousal home; (c) the completion date of the sale of the spousal home."

So if she sells it, it becomes payable.

[1655]

I guess what I'm getting at is that…. I don't know how the Chair wishes to deal with this. With respect to sections 33 and 34, I read this to mean that you could make an order vesting the family home in the surviving spouse without allowing the surviving spouse to retain the home until 12 months after her death, the sale or the time you cease to reside in it.

In other words — and perhaps I'm interpreting it too broadly — you could, under this section, make an order: "You get the family home, you owe the kids $50,000, and that $50,000 is not payable on your death, or whenever. It's payable three years down the road." Am I correct in interpreting sections 33 and 34 to mean that?

Hon. M. de Jong: As I understand the member's question, it is working together sections 34 and 33 and particularly 33(2), in a situation where an order is made vesting ownership in the spousal home in the name of the surviving spouse, in circumstances where the value of that exceeds what the surviving spouse would normally be entitled to on the intestacy.

I think the member's question is: could, in those circumstances, the court make an order that says, "The home is vested in your name as surviving spouse. The value of that exceeds your entitlement by $50,000. That is a debt you owe to your children, and that debt is due and payable not on your death, not even on the sale of the home, but in five years"? I think that's the member's question.

[L. Reid in the chair.]

Our initial read is that there's nothing here that would preclude the court from making that kind of order, but before we move on, I'm just going to take a moment to cross-check that.

That remains the view at this point — that there would be nothing to preclude that kind of order.

[1700]

Section 33 approved.

On section 34.

L. Krog: Just confirming. That section is a fallback section, as I read it.

What it says is that if the court, for some reason, or deliberately, or neglect, not having the position put forward to it, fixes a registrable charge with interest running on it,specifies a sum of money, then if it hasn't said anything about when it's due and payable, the fallback position is that it becomes due and payable "(a) twelve months after the…death of the surviving spouse; (b) twelve months after the date the surviving spouse ceases residing in the spousal home; (c) the completion...of the sale of the spousal home" — any one of those three.

That's the fallback position unless the court has said: "Right, it's the five years, the three years, whatever."

Hon. M. de Jong: I read the sections the same way.

Section 34 approved.

On section 35.

L. Krog: This section, which — hopefully, happily — is entitled "Circumstances when registrable charge becomes payable"…. Simply, as I read it, there is nothing — forgive the language to the Attorney General — tricky in this section. It's very straightforward.

It simply sets out things that would normally be applicable in a standard mortgage situation. If you don't pay your taxes, if you don't pay a mortgage registered against the home because there could be some other charge, if you take any action or failure to take action that jeopardizes the value — in other words, commit waste in the legal sense — then what we're saying is that,
[ Page 742 ]
in addition to bringing into effect the right to force a sale under section 34, those specific things, those actions, or failures if you will, also entitle the descendants, if you will, to force a sale of the home so that they, in fact, can be paid.

In addition, it provides further that if the sale of the home isn't sufficient to pay the amount secured by the charge, the court can order the release but may not make any order to recover from the estate or the surviving spouse any shortfall resulting from the insufficiency to pay the amount.

As I understand it, I'm the descendant. I'm the only son. Mom got the house. It was vested in her name. Mom lets the place go to wrack and ruin, develops dementia, whatever. I force the sale of the home. It isn't sufficient to pay the $50,000 charge that was against the home. This section says to me that I don't get to recover. If the home sells and the net sale proceeds aren't sufficient to pay anything that's secured by a registrable charge, then I don't get anything more.

[1705]

Hon. M. de Jong: I think the best way is to try and carry on with the member's example. The house has been vested in the name of the surviving spouse. At the time that happens, the judge has applied a charge to the sole descendant, the son, in the amount of $50,000.

I think the member's question is: if, to protect against prejudice to that interest because mom or the surviving spouse — it may not be mom, right; it may be stepmom, for that matter — isn't looking after the asset, the son decides, "I am going to bring application for sale," and that house sells for $200,000, I am advised that son realizes the $50,000. Son gets that $50,000.

If the House sells for $50,000, son gets the $50,000. If it sells for only $30,000, son's out of luck for $20,000. He doesn't have a claim against the remainder. Does that answer the member's question?

L. Krog: Yes. Because there are a number of circumstances, as I interpret these sections, which could arise. For instance, I'm a good son, and I say to mom, "You can mortgage the property, and I'll give you a priority" because that's contemplated. I think the owner of the registrable charge may, before or after it is registered in the land title office, postpone the priority of the registrable charge to other charges — section 5.

So you know what? Mom has no money, so I let her go out and take out a line of credit on the old family homestead there, and she runs it up. What this section says, in that circumstance as well as the one the Attorney General has just advised me of, is if the net sale proceeds after payment of the mortgage or because the place has gone to wrack and ruin won't cover the $50,000 that I was entitled to, I will be out of luck.

Hon. M. de Jong: Yes, I think that's the case, and I think in the example the member has given, the protection would be the requirement by the descendant, the son, to grant priority to the mortgage. So it wouldn't happen without the consent of the good son.

Section 35 approved.

On section 36.

L. Krog: There were exceptions under the…. There are. Pardon me. I'm talking as if we've passed this already. There are exceptions under the existing law that allow persons serving in the military to make a will even though they're not of adult age, even though they're technically incompetent at law. This is, again, a significant change. It sets the threshold for a will, making it: "…16 years or older and who is mentally capable of doing so may make a will."

I read that section to read that you have to be capable. You can't be just 16. You've got to be 16 and capable. In other words, if a certificate of incapability had been issued under the Patients Property Act, you couldn't make a will. That's fairly understood.

I'm just wondering: is the Attorney General aware of any court decisions that have defined what would constitute "mentally capable of doing so may make a will" if you're 16? The reason I raise that is this. Frankly, there are lots of 16-year-olds who are, in my view, competent to serve in this House and to do all kinds of things, and there are others who haven't got a whit of common sense and who, in a commonsense approach, wouldn't be seen as capable of making a will.

Is this section contemplating the old legal tests around capacity to make a will, or is it contemplating a mentally capable 16-year-old having regard to what 16-year-olds think? In other words, what does this mean?

[1710]

Hon. M. de Jong: Firstly, the member is correct. It is a two-part test, the one being fairly objective. One is either 16 years of age or not, but that is not sufficient. One must be 16 and also be mentally capable. It's not a defined term.

In the case where there is a challenge, it would be for the court to import the definition. The one contemplated by the drafters, I am reminded, is that in which the notion of mental capacity would presently exist — for example, the Patients Property Act. A similar test would be applied. But it is not defined in this act itself.

L. Krog: Right now if you seek probate of a will — not in solemn form but in ordinary probate, if you will — you file two affidavits, the affidavit of notice, the affidavit of the executor. Is it contemplated by this that you will simply file it in the ordinary way, and that there will be a
[ Page 743 ]
section that will say — presumably the executor saying — that "the deceased was 16 years old at the time of making the will and was mentally capable, and I'm telling you that," and that will be sufficient to satisfy the court? Or will something further be required?

I hesitate to use the term "bureaucratic" in a pejorative sense, but are we adding another bureaucratic step to the process of seeking probate of the will of a person who signed their will when they were 16? In other words, will there be some further requirement? Will there be a court hearing? Will a medical certificate be required?

In other words, has the Attorney General turned his mind to that issue, when this goes out into the world? Your 16-year-old son signs a will, dies tragically, and you're submitting it for probate. What is contemplated will be required in order to get probate of that will?

[1715]

Hon. M. de Jong: The short answer is no. There's nothing additionally contemplated.

The other point I guess I want to make. We're having the conversation in the context of a young person, but the test, of course, applies to everyone. A 90-year-old must also be, under this act, mentally capable of preparing a will. So it is a requirement that extends across the board.

Sections 36 to 38 inclusive approved.

On section 39.

L. Krog: I just want to confirm this section about clarification of doubt around a signature placement. I take it that this section is designed specifically to deal with all those difficult cases where wills have been declared invalid because the signature's really out of place. This is giving a much wider discretion to the courts, if you will, to satisfy themselves that if it looks like it's the testator's wishes, then we are going to honour it, notwithstanding that the signature isn't quite where it should be.

Hon. M. de Jong: I'd like to think that the member is correct. The intention here was not to dramatically change the substance of the provisions that are in effect now. There is, I think, greater clarity here and therefore perhaps a slightly better opportunity to give effect to the testator's intention where some of that ambiguity exists.

I don't want to leave the impression, though, that this represents a singular attempt to broadly expand or alter the substantive provisions of the existing law.

Section 39 approved.

On section 40.

L. Krog: It's a bit curious to me that we are now authorizing in British Columbia a 16-year-old…. I can see the smiles on the faces over there, knowing where this question's coming from. You're okay to make a will if you're 16 and you're mentally capable, but you have to be 19 to be a witness? I mean, the witness is just the person who can say that the testator signed the will. What's the point of requiring that?

I'm sure the Attorney General remembers that wonderful poem of Earle Birney's, David, from high school. This poor fellow goes off the cliff. He asked his friend to push him over because he doesn't want to live the rest of his life as a person who won't have any movement.

You've got three 16-year-olds out in the woods. One of them is the beneficiary of a significant trust that maybe just says they get it absolutely and regardless, and it's held in trust. You know what I'm saying? In other words, they may have assets of some substance. Maybe it's a hot car. That person, the 16-year-old, can sign the will that they draw out in the wilderness, but the two 16-year-old buddies can't act as a witness when there're no other witnesses available?

[1720]

I think the Attorney General gets my point. It just doesn't make any sense to me. Why is the person who is leaving the written instruction as to what happens to their assets capable of doing it, but you have to be 19 to just witness it?

Hon. M. de Jong: I think it's a two-part answer. First of all, I'm perhaps not as exercised as the member is about placing in the formalities of the execution of a testamentary instrument, including the proviso or the requirement that a person, the age of majority, be involved at some stage, notwithstanding the fact that people younger than the age of majority have now the ability to execute a will. So that's the first thing.

Generally, I'm perhaps more frequently on the side of the member on those sorts of questions. But including a requirement that says that whilst you can have a will at the age of 16, one of the witnesses should be the age of majority doesn't horribly offend me. Perhaps it doesn't horribly offend me because of the second part of the answer, which is, in the example the member has given, that there are now other provisions in this collection of legislation that would ensure that that testamentary instrument would be applied.

In circumstances where the only deficiency was the fact that, in an emergency situation of the sort described by the member, the witness was not the age of majority, that person's testamentary intentions could be given effect to. I can reconcile it on those terms.

L. Krog: So what the Attorney General is telling me, and the way I read it, is that even though the formal requirement is a 19-year-old witness, we can read section 58 to say that a court can, if you will, overlook the fact that we've got two minor witnesses and can still be
[ Page 744 ]
satisfied that it's a testamentary instrument and subject to probate.

Hon. M. de Jong: That's correct.

Sections 40 and 41 approved.

On section 42.

L. Krog: This section says that…. Basically just to confirm very quickly…. We talk about heir, next of kin, etc. I better read it out: "(2) A gift of property in a will to persons described as 'heir' and 'next of kin' of the will-maker or of another person takes effect as if it had been made to the persons among whom and in the shares in which the estate of the will-maker or other person would have been divisible if the will-maker had died without a will."

In other words, it simply says that the class, if you will, will inherit. So if we talk about an heir, that would presumably include your spouse. But if we talked about next of kin, and the only next of kin was a class of, well, children perhaps, or brothers, because you had no children, is that section essentially saying that it goes to that class and that that's sufficient?

[1725]

Hon. M. de Jong: I don't want to say whether I agree or disagree, because I may not have understood it correctly. I think the best way I can describe the purpose and intent of section 42 is to say that what the drafters were trying to achieve here is to ensure that gifts to issue under a will are distributed in the same manner as a distribution to issue on an intestacy — recognizing, of course, that a will-maker can always include specific provisions that are different.

Section 42 approved.

On section 43.

L. Krog: I just want some assurance around this section. This is the section dealing with gifts to witnesses, which historically have been void, or to a spouse of a witness.

It talks about, in subsection (4): "On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person was a witness to the will."

This is probably just as simple as I think it is. I do not read this section to say that if I am a testator who has been unduly influenced by someone who has witnessed my will, even though I intended to give it to them, arguably — that I had the intention, I intended to do it, but I was unduly influenced…. This section doesn't let the culprit, so to speak, the bad guy, get away with receiving my estate.

In other words, this doesn't give a get-out-of-jail-free card, if you will, to the person who convinced me that it was the right thing to do. I left them my estate. They witnessed my will, because they knew that if anyone else witnessed it, they would say: "Gee, George" — or Leonard — "why are you leaving your estate to this horrible person?"

So it doesn't get us past that. All it does is allow, in a situation where the court is satisfied you have a competent testator not unduly influenced, to in fact give a gift to a witness.

Hon. M. de Jong: I think the answer to the member's question is yes. This replaces the existing prohibition against a testamentary gift to a witness with a rebuttable presumption that a witness cannot receive a testamentary gift.

Section 43 approved.

On section 44.

L. Krog: This section provides, ultimately, that the Crown will receive real property — or property, I should say in fairness, because property is both real and personal — if there is no one entitled on an intestacy.

I don't know that it is, but is that in fact a change from the existing law or are we just restating?

Hon. M. de Jong: I'm going to answer what I think was the question. The member will correct me if I have understood the question incorrectly.

[1730]

I think he asked about the provision that proposes in this legislation that property not distributed via the will or testamentary instrument — or the residue, if you will — will be, under this legislation, distributed as if there was an intestacy and whether that provision replicates what is presently the law. It does, but that may not have been the member's question.

L. Krog: As I understand it now, if there are no persons entitled on an intestacy — in other words, you can't find the descendants anywhere — then the law, I believe, provides now that the property would go to the executor.

With great respect, I appreciate the difficult financial circumstances of the government of British Columbia looking forward to protecting its interests, but if I'm correct in my assumption about the existing law, the government's now going to pick up some extra assets that it wouldn't otherwise receive.
[ Page 745 ]

Hon. M. de Jong: Well, I'm sorry. I did misunderstand the member's question. He is correct about the distinction that exists in these circumstances that residue…. This is in a situation where there's no one. Seven degrees, four degrees — there's no one out there. The member is correct. Instead of passing to the executor, it would pass to the Crown.

The rationale there is…. Not to impugn the motives of any executor, but with the existing provision, the interest in locating someone several degrees down the path may be somewhat limited if the prize is to receive the assets for the executor him or herself.

Now, there is a saving provision, and it's one that we've already talked about in this discussion. That is the ability for someone to bring an application pursuant to the Escheat Act, where there is a moral imperative or perceived moral imperative rationale for doing so.

Section 44 approved.

On section 45.

L. Krog: As I understand this section, this, again, is an improvement of the existing situation. You will often find people who draw these horrible homemade wills — or sometimes drawn by lawyers, notaries who are less competent who think a subdivision is going through and it's not, or the law changes.

I read this to simply say that if the gift of land contemplates a subdivision, then the gift takes effect as if they were tenants in common in proportion to their interests. So if I, say, leave my five acres to Sally and Bob to be divided into two equal parcels of 2½ acres each, what this essentially says is that if they can't get the subdivision through because of regional district zoning — whatever — then they're each going to get their 50 percent and they're going to be registered as tenants in common, and what they do with it after that is their problem.

Hon. M. de Jong: That's how I read the section as well.

Section 45 approved.

On section 46.

L. Krog: I would appreciate if the Attorney General could simply explain what this section means and what changes it from the existing law.

Hon. M. de Jong: Well, the section, broadly speaking, sets up a priority scheme among potential alternate takers of gifts that actually fail because the original beneficiary predeceased the testator.

I think the second part of the member's question is: what existing provisions is this designed to replace? It would be sections 21 and 29 of the Wills Act.

[1735]

Section 46 approved.

On section 47.

L. Krog: This section…. I believe this may represent a change. In it, it talks about: "…'purchase money security interest' means a security interest taken in land or in tangible…property that (a) secures credit…" etc.

What it provides is: "The interest of a beneficiary in a gift of property encumbered by a purchase money security interest is, as between the different persons claiming through the will-maker, primarily liable to pay the debt secured by the purchase money security interest to the extent that the debt is attributable to the acquisition, improvement or preservation of the property."

What I take it to mean is: you get it, and you get it with the debt. Is that essentially the meaning of this section?

Hon. M. de Jong: Right. Yeah, the debtor security is registered in the personal property registry, so it extends that notion of real property interests and security instruments to personal property instruments.

L. Krog: Just so I'm…. I can give a nice simple example. Your father leaves you his 1975 classic Camaro automobile that has a $30,000 Personal Property Security Act registration against it, and it's worth $35,000. You may wish to take it, but if it's worth $28,000 with $30,000 against it, you may not wish to take it. Is that fair to say?

Hon. M. de Jong: The member reveals much about himself when he talks about that Camaro.

The member is correct. You would be faced with a decision.

L. Krog: This again represents a bit of a change, because you can obviously specify in the will that there's a contrary intention. But a general direction for payment of debts — the most standard provision in any will I've ever seen — doesn't supersede this provision. In other words, if you say you're leaving me the car and you've got a general clause that says debts, testamentary expenses, I still won't get the car free and clear. I get the car with the debt.

Hon. M. de Jong: Section (4)(a) makes that clear.

Section 47 approved.

On section 48.
[ Page 746 ]

L. Krog: This section again, as I read it, is an improvement or, certainly, a reform. What it provides is that "proceeds" refer to "a non-monetary consideration," "fair market value" of gift, etc. What it provides is that: "If property that is the subject of gift in a will is disposed of by a nominee…."

For the sake of the record and those listening, "nominee" is defined as: "(a) a committee acting under the Patients Property Act, (b) an attorney acting under…power of attorney…(c) a representative…under…the Representation Agreement Act."

"…is disposed of by a nominee" — in other words, obviously, that has to be during the lifetime of the testator, then — "the beneficiary…is entitled to receive from the will-maker's estate an amount equivalent to the proceeds of the gift…."

In other words, if you leave me your antique dining room table — and arguably, the public guardian and trustee, I suspect, would potentially qualify, although that's not entirely clear — then if you dispose of it and fair market value is $2,000 and then I die and the will's there, then I'm going to get my $2,000 in lieu of the dining room table, so to speak, and that again is a change.

Hon. M. de Jong: That is a correct description of how we believe the section operates.

[1740]

Sections 48 to 50 inclusive approved.

On section 51.

L. Krog: This section provides that "(a) a gift of property that the will-maker does not own is void, and (b) the rights of a beneficiary are not affected by the purported gift…. (2) A will-maker may make a gift of property that is conditional on the disposition by the beneficiary of property owned by the beneficiary."

What's a circumstance that would fall within the ambit of section 52(2)? I'm just trying to think of an example that would make sense to someone trying to interpret this section.

Hon. M. de Jong: I think the member is referring to 51(2).

L. Krog: Yes. Sorry.

Hon. M. de Jong: Hon. Chair, bear with me. I'm going to try and do this via scenario and see if it makes some sense. Perhaps I'll use examples and merchandise that I know the member is familiar with and probably owns.

Let's say the testator's will gives my Picasso to A and my da Vinci to B. But the testator doesn't own a Picasso, but B does own a Picasso. In that case, what B has to do is elect between keeping the Picasso or giving the Picasso to A in order to get the da Vinci under the testator's will.

Interjection.

Hon. M. de Jong: I can't believe the opposition House Leader would disturb you in the midst of this sterling example of art and law melding.

So that election exercise is preserved somewhat. That is an example where these provisions remain relevant.

The Chair: Shall section 51 pass?

Mr. Attorney, returning to 51.

Hon. M. de Jong: Sorry, Hon. Chair, that was exactly the wrong statement I just made. That that scenario or that election could no longer occur is provided for, contrary to what I just said, that it addresses that. It addresses it by not allowing it to happen.

[1745]

L. Krog: Looking at subsection (1), it says: "Subject to subsection (2), (a) a gift of property that the will-maker does not own is void" — I leave my Picasso to George; it's void — "and (b) the rights of a beneficiary are not affected by the purported gift by the will-maker of property owned by the beneficiary." So the rights of a beneficiary are not affected by the purported gift by the will-maker of property owned by the beneficiary.

You know what? The Picasso belongs to Sally, so Sally can't be affected by this. I don't know. It's kind of a statement of the obvious. Then it goes on to say: "(2) A will-maker may make a gift of property that is conditional on the disposition by the beneficiary of property owned by the beneficiary."

So I would take it to read: you've got a grandson who has a Harley-Davidson, and you don't want him to ride it anymore. So you say: "I will give you my 1975 Camaro conditional upon you selling your Harley-Davidson." Is that, in fact, what section 2 means?

Hon. M. de Jong: Short answer again is yes. That kind of conditional gift — it's a good example that the member gives — is still permissible under these provisions.

Section 51 approved.

On section 52.

L. Krog: This is the section dealing with undue influence. I believe this represents a clarification at worst and an improvement at best. It provides that "In an action, if a person claims that a will or any provision…."

I may wait, Madam Chair, to give the opportunity for the Attorney General to confer with our distinguished
[ Page 747 ]
House Leader, who, like a parrot, a perennial parrot, makes flight from perch to perch.

Interjection.

L. Krog: One member has asked if I own a Camaro. Never did; never will.

Interjections.

L. Krog: Some younger members of the House are pointing out they don't remember what Camaros are. I suppose they don't remember John Kennedy's assassination either, but I'm sure we'll give them an opportunity over the next 3½ years to be educated in these ancient bits of history.

Now that I have the absolutely undivided attention of the Attorney General…. I'm always flattered by any attention he gives me, of course.

Section 52 provides: "In an action, if a person claims that a will or any provision of it resulted from another person (a) being in a position where the potential for dependence or domination of the will-maker was present…."

I think that is a fairly significant change. It doesn't even say "it was," but:

"…being in a position where the potential for dependence or domination of the will-maker was present, and (b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged, and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged."

[1750]

So really what we're creating here is a reverse onus that is quite specific. You not only have to be in a position where the potential for dependence or domination was present, you have to show, also "…and using that position to unduly influence the will-maker to make the will that is challenged, and establishes that the other person where the potential…" etc. Then the onus reverses on you to prove that, in fact, undue influence didn't occur. Is that really what this section is saying?

Hon. M. de Jong: Instead of just agreeing or disagreeing, I'll provide my version of what I believe is presented here in the state of the law, and hopefully, the member will derive an answer from that.

Currently we have a situation where with respect to a testamentary gift, a person alleging that a gift in the will was made as a result of undue influence has to actually prove that the beneficiary exercised that undue influence on the deceased. So presently that obligation is to prove undue influence.

That is different than what exists with a lifetime gift, where if the person challenging can show that the beneficiary was in a position of influence, then the obligation shifts to the beneficiary to rebut that presumption of undue influence. That is what presents itself in the new provisions. So I think the member described it correctly when he spoke to the injection of the rebuttable presumption in these provisions.

Section 52 approved.

On section 53.

L. Krog: With respect to section 53, these revoke, if you will, a number of common-law rules, I take it, and the presumption of advancement. Obviously, this may well eliminate a number of issues.

It says in subsection (1): "The presumption of law that a gift by a will-maker made during his or her lifetime to a child of the will-maker or to a person…is an advancement of that portion...is abrogated...."

If I leave $50,000 to my nephew Charles and in fact I've given $50,000 to my nephew Charles in my lifetime, then…. Pardon me. That one will still exist. In other words, the presumption is that I've given it to Charles. But if it's to a child in a will, then my child gets another $50,000 on my death. That's the way I read this section. It only applies to a child of the will-maker or to a person to whom the will-maker stands in the place of parent. The nephew may not be the best example.

[1755]

Essentially, as I read this section, if my will says I give $50,000 to my son, and I've given $50,000 to my son in my lifetime, my son gets a further $50,000 on my death. In a situation where I'm leaving $50,000 to my cousin George, a little bit removed, if I've given $50,000 to my cousin George, then the presumption still continues that that was it. He doesn't get a further $50,000 on my death, out of my estate.

Hon. M. de Jong: I think the member in his first scenario has it correctly, as it relates to the abolition of the rebuttable presumptions that existed vis-à-vis gifts and children. I think he has that correct.

I'm not certain, though, that there was, or is, the same rebuttable presumption applicable in the second example. Therefore — and if I'm mistaken, I'll stand corrected — if that is so, then in the case of the lifetime gift to friend or cousin George of $50,000 and a second testamentary gift of $50,000, then cousin George has $100,000.

Section 53 approved.
[ Page 748 ]

On section 54.

L. Krog: Section 54, as I read it, is essentially a repetition of the existing Wills Act — subject, of course, to section 58, the power of the court to cure deficiencies — and that's really all this section is doing. That's my understanding. Is it correct?

Hon. M. de Jong: Yes.

Section 54 approved.

On section 55.

L. Krog: Again, this is a fairly significant change as well. The existing law provides that a will is revoked by marriage of the testator. That is essentially abolished by this section, as I understand it. In other words, the only ways you revoke a will in British Columbia in the future, after passage and proclamation, are if you sign another will; by a written declaration revoking it; by burning, tearing or destroying it; by a rectification, if you will, under section 58; or by order under section 58. But it's not revoked by marriage.

In other words, I could be married for 20 or 30 years, and the fact is that my spouse, working on some assumption that I've looked after her interest, may in fact find a bit of a surprise. Now she'll have a claim under the Wills Variation Act, or the new sections, but essentially, that's it. Divorce, historically — certainly after passage of the changes — revoked any provision for a spouse, but marriage no longer will revoke a will. Simple as that?

[1800]

Hon. M. de Jong: The member is correct, and it's an important section. One of the things that I think all personal representatives, lawyers and notaries do at the time of execution is to alert the testator to the fact that upon marriage, this will is null and void. That will no longer be the case, and people will need to be aware of that. If they wish to make different testamentary provisions, which generally speaking they may wish to do, they will have to do so.

Section 55 approved.

On section 56.

L. Krog: Section 56 just continues the existing provisions that if you…. In fact, now it's not just a question of separation, I believe. If you cease to be a spouse under section 2(2), this represents a bit of an extension. My recollection is — and maybe I'm wrong — that the existing provision is that you actually have to divorce. Whereas now, if you separate, if you cease to be spouses, then likewise, any appointment or gift under the terms of the will is void.

I go back to section 2. If you're married, you cease to be spouses if you live separate and apart for at least two years with the intention of having lived separate and apart or a section 57 declaration. As I understand it, divorce becomes secondary, if you will, arguably, to the separation. That separation is now the key for the section that revokes gifts to a spouse or an appointment under the terms of a will.

Hon. M. de Jong: I think the member is correct. It is now the end of the spousal relationship that triggers the revocation provisions.

Sections 56 and 57 approved.

On section 58.

L. Krog: This is arguably one of the more dramatic sections of the act, and I might say, in deference to those who are paying attention to this, that I think it's a significant improvement in the existing law.

Just so I'm clear in my understanding of this. This section defines specifically "record." It includes "data that (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of reproduction in a visible form." So anything that I've typed into a computer, anything stored in a database, something that potentially I've texted on my cell phone or whatever — and I'm no technocrat — is a record for the purposes of this section, and the court, on application, can make an order.

If the court is satisfied — "determines that the record, document or writing or marking on a will or document represents (a) the testamentary intentions of a deceased person, (b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition…or (c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will" — this gives the authority to the court.

Even though the making, revocation, alteration don't comply with the act, the court may, "as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made (a) as the will or part of the will of the deceased person, (b) as a revocation, alteration, or revival…(c) as the testamentary intention of the deceased person."

It then goes on to provide, "If the alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word," etc.

[1805]

Essentially, what this section is saying is that if the court is satisfied that the last e-mail I sent before I
[ Page 749 ]
expired says, "The car to cousin George and $50,000 to my aunt Sally and whatever," in fact, the court will be able to accept that as a valid testamentary instrument in British Columbia, and the property will be disposed of in accordance with that.

I'll use a couple of examples. Perhaps I'm not that bright, and I don't appoint an executor in this record, but I've made a disposition of assets. The way I read this section, that disposition will in fact potentially be recognized by the court. In the case of a situation where I've appointed an executor as well, it's probably even easier to recognize.

What I'm getting at is that even if I haven't appointed an executor, does this mean that if I've made my intention very, very clear and there is no witness — 16, 19 or otherwise — then my wishes will be respected?

I think the Attorney General will recall — what was it? — the tractor case out of Saskatchewan, where he scrawled in his blood on the side of the tractor "to my wife" or something like that. In other words, that would now be recognized in British Columbia.

Hon. M. de Jong: Yeah, the infamous holograph wills, as I think they are referred to.

Yeah, I have tried, in many of the cases where the hon. member has identified and interpreted the sections, I hope accurately and responsibly, to confirm his interpretation. I think, generally speaking, that he has it right. But I do want to add this caveat. I think the overall intention of what the recommendation was from the institute, what is reflected in the drafting, was to create that opportunity to give effect to testamentary intentions beyond being a slave to the formal requirements of executing a will.

The member's right — the tractor case, and my favourite, Mrs. Chalcraft, who got halfway through executing her will before the pen went off the side, and had she fulfilled the requirements of a will?

But here's my public service announcement for the day. I think courts are going to be very cautious about…. I don't know what the courts are going to do, but I think they will be cautious. I've been listening carefully throughout the afternoon. I don't want people — and I'm sure the member wouldn't want people who apparently are watching and tuning in, in droves to this exchange — to misinterpret what he said. You don't make a will by sending an e-mail.

That is not how you do it, and it would be a mistake for people to rely on section 58 for the proposition that I can now, in any way I deem fit, create a testamentary document and be confident that it will be given effect. I know that's not what the member was suggesting, and I'm sure he will confirm that in a moment.

The section does very purposely broaden the discretion that a court has to look at a body of evidence and the circumstances around which a document was created to try and give effect to the testamentary intentions of a deceased person. I think that is an appropriate thing to do. Frustrating people's last wishes on the basis of formality never did strike me as making a lot of sense. But it is a discretionary authority that I suspect the courts will exercise with great caution.

L. Krog: Nor need the pen be in my hand to create a will in this pleasant legal land. That's essentially what this section is saying. I appreciate the comments of the Attorney General, but the potential, as I read it, is pretty clear. It does not even require a signature.

[1810]

We've had lots of cases where there's been a signature but no witnesses, and so the formal requirements aren't met. I'm going to assume that if that was the intention of the government, then it would have said so. So this section, I think, can be read that broadly.

I'm sure the courts will interpret it as they always do things, in a fairly conservative manner. But my plain reading of this is that you can express your testamentary intentions and have it recognized as a will without ever actually having signed it in the traditional sense.

You may have created the document. You could have done it on a piece of foolscap. You can do it pumping it into your computer. After all, as long as it's been recorded or stored electronically and is capable of reproduction, then it will constitute a will.

Personally, I don't particularly have a problem with that, but I am a tiny bit concerned about the issue of fraud and all those crazy things you see on TV and in modern movies about how people can play with computers and do all kinds of things.

Again, I come back to it, and I appreciate the Attorney General's caution to people listening. On the face of it, that is what this section says. If a court is satisfied that the electronically recorded intention of a deceased person without signature is accepted by the court, then it can and will constitute a will recognized in British Columbia.

Hon. M. de Jong: Whilst it is not possible for us to speculate with certainty or predict with certainty how the courts in British Columbia will interpret these provisions, we can look to other jurisdictions where curative provisions of this nature exist. I am advised that they exist in Saskatchewan, Manitoba, Quebec, New Brunswick and P.E.I.

I think this is a subtle thing. Whilst I agree with the member that virtually any of the formal requirements of a testamentary instrument that are missing or found to be missing can be cured or overlooked by a court pursuant to these provisions, I stop a little short of wanting to leave — again, I don't think the member intends to do this — the impression that in all cases that scrap of paper or that e-mail will be found to be sufficient.
[ Page 750 ]

There may be circumstances in which a court says: "Having regard for the circumstances, the capacity of the individual and the situation, this is an accurate reflection of what their testamentary intentions are." I would suggest that that is far from a certainty. The opportunity exists, but I caution people against relying upon that possibility.

Section 58 approved.

On section 59.

L. Krog: Again to the Attorney General: this is a fairly significant reform as well, expanding the power of the court to correct errors and specifically referring to, in sub (1), an error. Well, I should perhaps read it for the record:

"On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker's intentions because of (a) an error arising from an accidental slip or omission, (b) a misunderstanding of the will-maker's instructions, or (c) a failure to carry out the will-maker's instructions."

As a lawyer, we regard (b) and (c) as manna from heaven, because it may save us from being sued, I suppose, because instructions are sometimes not carried out perfectly.

I note that the section further provides: "Extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the existence of a circumstance described in subsection (1)."

[1815]

What I'm thinking is that you're at home sitting with your partner, and you tell them you're going into your lawyer's office to draw a will that leaves everything to them and perhaps a $10,000 gift to the SPCA and that that's your clear intent. Then arguably, under this section, if you go into your lawyer's office and you neglect to mention the gift to the SPCA…. The will is drawn, you execute it, you go home after execution, and you say: "Well, I'm really happy. I've left you everything, except for that gift to the SPCA."

Then my reading of this section is that the SPCA would be in a position to go to court. How they would ever find out about the gift, who knows? Maybe because the testator told them. They would be able to go to court and ask for that kind of correction.

Now, I give that very specific example because I know how many pet owners there are in British Columbia like myself, who love their animals, and I suspect the SPCA may be a frequent beneficiary. But that's my reading of this section, and I just ask the Attorney General to comment on that example.

Hon. M. de Jong: I think the example is one that may well occur. These are provisions that will be judicially considered in due course, so the best I can offer the member today are my own thoughts on the application of the proposed law as written.

I don't know, in the example the member offered, that the test would be met — that under section 59(1)(a) or (b)…. Presumably, that individual went to, in the example, the lawyer and provided instructions.

If it was clear that the testamentary instrument, the will, reflected the instructions given at that time, I'm not certain that a court would rely upon section 59 to make alterations — to the extent, I suppose, that judicial consideration will be given. They may look back upon these debates for some guidance in what the Legislature intended in giving passage to this effect.

I can relate to the House that what the drafters were cognizant of were the kinds of difficulties that arose in the case of re Morris, where a mere numbering issue in a clause in the will — 7(5) and 7(6), and the (6) didn't appear — led to all sorts of consternation and difficulties.

What the drafters…. And what was, I think, uppermost in people's minds was creating a mechanism by which that kind of issue could be cured. So I think I stop a little bit short of embracing the example offered by the member as one where the court would rely upon this provision to effect change.

L. Krog: I don't want to argue a legal case with the Attorney General here today, but I think the sections can be interpreted relatively broadly because it refers to an error arising from an accidental slip or omission, because it relates back to the will-maker's intentions. So if it's my omission as a testator that I forgot to tell the person who drew my will that I intended this gift to the SPCA….

[1820]

I think that unless the section specifies it's an omission of the person who draws the will themselves in the physical sense, you have to relate it back to the will-maker's intentions, because this is a section that deals specifically with rectification. The court has to determine that the will fails to carry out the will-maker's intentions.

The key is the intention of the testator or the will-maker. If there is an error arising from an accidental slip or omission, I don't think that has to be a slip or omission committed by the lawyer who draws the will or the legal assistant who types it. I think it can relate back to an omission of the testator at the time instructions are given. In other words, this is a fairly broad power to make those kinds of corrections, if you will, to a will.

The key in all of this, just as the key in section 58, is the intention of the testator. That's the key in both sections, the way I read them. It's the intention.

Indeed, section 59(2) goes on to talk about: "Extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the existence…." So in other
[ Page 751 ]
words, we're ensuring that the broadest range of evidence is available, if you will, to satisfy the court that there has been that slip or omission.

I think it's actually a good thing. The Attorney General may disagree with the example, but I think you have to interpret that section to refer to exactly that kind of omission, because the omission isn't referred back specifically to any person. I think it applies to any person involved in the process. Since the omission is mine as a testator, so be it. It's going to apply.

Hon. M. de Jong: Look, I think that when I articulated my response a few moments ago, the possibility of judicial interpretation…. I don't think I'm in a position to argue that based on the word on the face of the record. I've just been reminded that the provisions are actually narrower than those which exist in other jurisdictions where they do exist, but be that as it may.

I think perhaps my reaction to the example given by the hon. member is built around the expectation that in applying the provisions, the court…. In seeking to overturn a document that is clear on its face, on the basis of section 49(1)(a) or (b) or (c), a court is going to require, I think, based on the body of law that already exists….

The act is not arriving in a vacuum. It is operating within the context of an existing body of jurisprudence. I think a court would be seeking some pretty clear and overwhelming evidence of what that error or omission is.

We may be saying the same thing and simply speculating about the circumstances in which the court would rely upon the provision to do what it allows.

Hon. Chair, noting the hour, I would move that the committee rise, report progress, and seek leave to sit again.

Motion approved.

The committee rose at 6:25 p.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was granted leave to sit again.

Committee of Supply (Section A), having reported resolution and progress, was granted leave to sit again.

Hon. M. de Jong moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow morning.

The House adjourned at 6:27 p.m.

PROCEEDINGS IN THE
DOUGLAS FIR ROOM

Committee of Supply

ESTIMATES: MINISTRY OF
CITIZENS' SERVICES

(continued)

The House in Committee of Supply (Section A); H. Bloy in the chair.

The committee met at 2:32 p.m.

On Vote 20: ministry operations, $164,136,000 (continued).

D. Routley: I just have some follow-up questions on document disposal, in pursuing some of the answers from yesterday's session. Yesterday the minister appeared to suggest that EDS Advanced Solutions was not involved in the government's document disposal procedures.

This is what the minister said:

"Further to your question in regards to the Document Disposal Act, no parts of the Document Disposal Act are handled by outside contractors. That act is completely administered within the policy of the chief information officer.

"The relationship that you've set out here between EDS and the government of British Columbia doesn't alter the relationship in terms of whether outside contractors are working on the Document Disposal Act."

Perhaps I misunderstood. Can he please clarify or not…? Was he denying that EDS Solutions is involved in the government's disposal operations?

Hon. B. Stewart: Just to clarify. When the question was asked yesterday, we were talking about outside contractors being involved in the administration of the act, which EDS has no part in. EDS is involved in the actual management of record storage and some involvement in the actual destruction of the documents as required under the act.

[1435]

D. Routley: So I assume the answer, then, is yes. They are involved. I understand the answer gives some clarification. But can the minister describe exactly their relationship in the process and how they function?

Hon. B. Stewart: I'm remiss in first of all not reintroducing staff that are here from Citizens' Services to assist in answering the questions for estimates today. I'd like to introduce the deputy minister, Kim Henderson, of Citizens' Services. To my immediate left, Beth James, president and CEO of Shared Services B.C. Ron Norman,
[ Page 752 ]
the head of government communications in the public affairs bureau; Lynda Tarras, the head of the B.C. Public Service Agency; and John Bethel, the ADM for alternative service delivery and the executive financial officer.

In regards to the member opposite's question, first of all, EDS in Canada is referred to as EAS. I'll just read some notes here from the final agreement.

"The province signed a master agreement with EDS Advanced Solutions Inc., called EAS, on March 30, 2009. The contract was for a term of 12 years for managing hosting services and 15 years for data centre services, respectively, with possible extensions for both service categories up to a maximum of 20 years.

"As part of this agreement, EAS has assumed responsibility for the following services, including all business processes in support of these services: storage and backup of services, hosting services, open systems group, application-enabling systems, windows."

D. Routley: The minister stated yesterday that the budget for the policy area that covers what he called the document disposal and destruction act is $579,000.

I have a couple more questions about that budget. How many FTEs are in this area, and who is the director?

[1440]

Hon. B. Stewart: First off, in regards to the budget that we gave you for the area of policy, the policy budget of $579,000 also refers to the electronic transfer act, the document destruction act and the Freedom of Information Act. So those are all covered in that one area. I'm sure we can get you a breakdown specifically, but it may take a minute. The person in charge of that, the director, is Wendy Taylor. Currently that area, which includes FTEs for all those areas of records management, has 48 FTEs. However, the document destruction act is a smaller number, and we can get that number if you wish.

D. Routley: Who does she report to, and does she report to anyone else? Is there any other chain of possible command in that system?

Hon. B. Stewart: First of all, I should introduce Dave Nikolejsin, who is the government's chief information officer. Wendy Taylor reports directly to him.

Just for the record, I want to correct that I said "destruction." Again, it's disposal — the Document Disposal Act.

D. Routley: How much of this budget covers the cost of the current document retrieval exercise that the government is engaged in, in the process of retrieving missing electronic records, or is this perhaps a different operational budget?

Hon. B. Stewart: The budget number that we've just given you is just for the policy of those areas. It is a separate number, which we don't have at the present time, just for retrieval purposes.

D. Routley: I'd like to take the minister up on his offer to provide the specific FTEs involved in the document disposal area, if that's possible now. But I'd also like to ask the minister: what is the process for ordering the disposal of a document? Can someone in, say, the Premier's office directly order the disposal of certain documents? Can the Premier himself directly order the disposal of certain documents?

Hon. B. Stewart: First of all, the FTEs in the policy that deal with the Document Disposal Act — five. In regards to the question about who gives the authorization, I described yesterday that the Document Disposal Act is available on line. We'd be happy to provide the link to where that is for you to have a look, but the act is clear as to whose responsibility it is and what the documents are and how they're disposed of.

D. Routley: Answers have been less than clear, though, so I'd like to ask the minister: is there any circumstance in which a direct order could be given from the Premier's office or from the Premier to dispose of specific documents?

[1445]

Hon. B. Stewart: You know, the matter is very clear. The fact is that this is an act, and it's administered by the government's employees. The bottom line is that it's not something that the executive get involved in. But that matter in regards to that is clearly in front of the courts, and I don't think that it has any bearing on the estimates here dealing with Citizens' Services.

D. Routley: How much of the budget costs that the minister has described cover the current document retrieval exercise that the government is engaged in?

Hon. B. Stewart: Just in regards to that — the issue about document retrieval — it's not…. The branch is still actually receiving instructions in terms of the courts on that, and as such, we really don't have an amount to give you in terms of how much that cost is. We'd still have to do further analysis, which I'm not certain we could provide during this estimates process.

D. Routley: Well, the effort is underway. The government is attempting to retrieve documents that must impact the budget in the current year and the coming year, with the overlap. So it seems unfortunate and unacceptable that the minister cannot tell us just how much of the budget is being spent on that exercise of retrieving documents that have been identified as missing.

Hon. B. Stewart: As I mentioned to the members opposite, this work is still ongoing. It's not complete. As far as the budget numbers, the payment for this is going
[ Page 753 ]
to come out of workplace technology solutions, and it's an item that we don't have the final numbers on at the present time because we're still responding to the court's requests.

D. Routley: In that case, I would ask the minister to make a commitment here today to provide that number, the amount spent on this current document retrieval exercise, as soon as he has it.

[1450]

Hon. B. Stewart: I think that the only appropriate way to answer this is that because there's no fixed timeline or completion date for this particular issue…. The fact is that the courts, as well as the people that are representing the people in that particular matter, will essentially not have that amount until it's complete. We will happily provide that at the completion.

D. Routley: I understand the minister to be agreeing that when he has the number — the amount of the budget which has been spent on the current document retrieval exercise related to the missing electronic documents — he will provide that number to us as soon as he has it.

Hon. B. Stewart: Once we're confident that there are no further requests coming from the courts, we'll be happy to provide that number.

D. Routley: What is the budget for the operational area related to document disposal?

Hon. B. Stewart: The Document Disposal Act is…. As I mentioned, the act — and the policies as to how it affects ministries — is defined as we've indicated on the Web. It's the ministry's responsibility to ensure that they are conforming to and making certain that they take care of documents within their own ministries, as to how they're actually…. They are obligated to meet the Document Disposal Act.

[1455]

The responsibility of WTS takes over, and that particular budget area item of off-site storage and retrieval is a budget of $5.6 million.

D. Routley: What about the collaboration and messaging services? What is that unit's budget?

Hon. B. Stewart: We're just retrieving that number. It will take us a minute to find that number for you.

D. Routley: Who does this unit report to? And what is the relationship between collaboration and messaging services and EDS Advanced Solutions?

Hon. B. Stewart: In regards to the handling of that, Jill Kot, the assistant deputy minister, is responsible for workplace technology services. In regards to the collaborating and messaging, they report to Jill. As well, all the relationships with outside contractors report to Jill Kot.

D. Routley: What is the name of the program area that is in charge of making sure government information is categorized and organized by the government's ARCS and ORCS classification system?

[1500]

Hon. B. Stewart: First off, just a point of clarification on that last question. I indicated that Jill Kot was responsible for outside contract relationships. She's responsible just for the EDS relationship.

In regards to the ARCS and ORCS system, first of all, the record schedules are reviewed by the public documents committee established under the act and submitted for approval either to the Public Accounts Committee and the Legislative Assembly or to the executive council.

The office of the chief information officer has also established policies requiring that ministries implement these schedules and appropriate record disposal procedures.

D. Routley: What is the budget for this program area? Has this budget gone up or down since February and since the '08-09 budget?

Hon. B. Stewart: I don't quite have the answer for that question just for a second, but the budget for a previous question, for the communication and collaborations for the branch, is $2.7 million.

D. Routley: Has that budget increased or decreased since the February budget and since the '08-09 budget?

[1505]

Hon. B. Stewart: Just in regards to the ARCS and organization system, the budget number is actually embedded in the $5.6 million in terms of record storage and management that we referred to earlier. We will need time to find that number, and we can't identify that right at the exact second. The same with the communication and collaboration — the numbers about the increase/decrease from February '09 to September '09. I'd like to ask if we could just take those on notice and get back to you on those.

D. Routley: Those seem like very important numbers to me — and the relationship to previous budgets and previous operations. So it's important to me that I receive those numbers. Could the minister commit to a time frame for delivering those numbers?

Hon. B. Stewart: We'll have that, if not today, sometime tomorrow for you.
[ Page 754 ]

D. Routley: Could the minister tell me what cuts have been made to discretionary funding in these areas?

Hon. B. Stewart: I'm sorry. We don't have that number right at the present time, but we'll provide that to you with the earlier information by tomorrow.

D. Routley: Embedded in the answer, then, in a sense, is: "We don't have that number; we'll provide it by tomorrow." So there must be a number, and there must have been cuts to discretionary funding in the budget, I assume from the minister's answer.

[1510]

Hon. B. Stewart: To the member opposite: I just want to clarify. We're talking about discretionary spending here. There are no discretionary grants in this particular area of the ministry. So in discretionary spending, we don't have it broken down into these subsets that you've been asking for.

But I can tell you that as with everything in government, across the board, discretionary spending for travel, office administration and consultants has been cut significantly. As such, the Ministry of Citizens' Services and this particular branch did exactly what was asked by the Finance Ministry.

D. Routley: I'd like to ask the minister: are there long-term employees doing this work? What cuts have been made to FTEs in this area and to contract employees in this area?

Hon. B. Stewart: Because we've talked about a number of different areas — records management, the ARCS and ORCS, and messaging areas, etc. — could you repeat exactly the area you're wondering about — whether long-term employees…? In terms of doing this particular work, I'm not exactly certain how to answer that question. The reductions in terms of workforce adjustment, I'm happy to answer provided we know specifically where they are.

D. Routley: I'm referring to the records management area. I understand from information I've received that cuts in this area began in December and that many long-term employees — long-term contract employees who know this work very well and can apply very high standards of judgment to this work — have been let go and that there are very few overworked and less highly trained staff remaining. I'd like the minister to address that, please.

[1515]

Hon. B. Stewart: Okay. I think it's probably best for the members opposite that I just review some information that we read into the record yesterday about these people in records management who were part of a reorganization that was part of the freedom-of-information office being consolidated and the processes streamlined, as we talked about yesterday.

"Before the formation of the IAO, staff directly employed in responding to the freedom-of-information requests from the public, in records management, were distributed across government and part of ministry organizations.

"When the IAO was established in January of 2009, it included 172 positions — 100 FOI positions, 67 record management positions and five…management and support positions. And 145 FOI and records management positions transferred from the ministries to IAO. Of these positions 100 were FOI and 45 were records management. Of the 100 FOI positions five were vacant at the time of transfer and not filled. After the transfer three more FOI positions were vacated and not filled.

"Recently one encumbered FOI position was eliminated. Today 91 staff are directly employed in responding to the freedom-of-information requests, four less than prior to the establishment of the IAO.

"The records management component of the IAO is comprised of the 45 records management positions transferred from ministries and 22 positions in the corporate records management branch. Through not filling vacant positions and…recent workforce adjustment of eight positions, there are now 55 staff employed in records management.

"The IAO organization is led by an executive director who is supported by an administrative assistant. The total number of positions in the IAO is 148.

"The consolidation of FOI operations has enabled government to improve its response time to FOI requests and manage an increased volume of requests with a slightly lower number of staff than prior to consolidation."

D. Routley: I'll remind the minister of Mr. Loukidelis's concerns in this area: "I am concerned that the policy objectives of openness, accountability and good management — and frankly, the historical record — are not being well served at this time."

In the minister's comments yesterday, the minister indicated that there are multiple individuals charged with administering document operations, and here's what he said: "The responsibility is left with each of the individual responsible members of the public service in their individual departments to make certain they can administer the document destruction act."

I assume the minister means deputy ministers. So is the minister saying that for direct government ministries, the person charged with ensuring appropriate preservation and disposal of documents, government documents, is the deputy minister?

Hon. B. Stewart: That's correct.

[1520]

D. Routley: So am I to understand, then, that in Citizens' Services the deputy minister present here is responsible for administering and ensuring appropriate preservation and disposal of government documents in this ministry, Citizens' Services? Is that the same for the Premier's office?
[ Page 755 ]

Hon. B. Stewart: Yes, that is correct.

I just want to clarify that in Citizens' Services there are four deputy ministers, as I mentioned. I introduced to you earlier Kim Henderson, the Deputy Minister of Citizens' Services; Beth James from Shared Services B.C.; Ron Norman from the public affairs bureau; and Lynda Tarras from the Public Service Agency.

In regards to the Premier's office, yes, it is the Deputy Minister to the Premier.

D. Routley: When we left off yesterday, I had asked the minister why the damaging welfare statistics were suppressed, while other routine statistics from another agency under his ministry, B.C. Stats, continued to be released in a neutral and non-partisan manner. If the minister believes that the public affairs bureau is in the right in suppressing welfare statistics, does he believe B.C. Stats instead violated Jessica McDonald's edict?

Hon. B. Stewart: Just to confirm to the member opposite: the public affairs bureau operated exactly as they were directed to during the interregnum period. The B.C. statistics branch released information that was already in the public domain, published by Statistics Canada. That's the reason it was available and was not restricted, as you've just asked.

D. Routley: The minister has been quoted saying that the public affairs bureau was following protocol but that it wasn't a written policy. Has this now been turned into written policy?

Hon. B. Stewart: No.

D. Routley: Well, does the minister not think that that would be a wise thing to do? Shouldn't that include B.C. Stats releases?

If he thinks that it was appropriate that the welfare statistics were suppressed, wouldn't he, then, think that it would be appropriate that other routine stats, such as B.C. Stats or a ban on Stats Canada information during an election period in B.C…? Shouldn't that be considered appropriate if the minister thinks it's appropriate that the public affairs bureau suppressed the welfare statistics during and before the election period?

Hon. B. Stewart: Okay. The situation with B.C. Stats is that it is different, because all it really did was take B.C. stats and repackage them. It was readily available through the public domain.

The difference during the interregnum period, as I stated yesterday and mentioned and told to the media, is that the government and previous governments, in order to prevent the perception that public servants are in any way influencing public opinion during the election, are restricted in terms of their release of information, whether it's good or bad.

There's lots of positive information that wasn't released, just as well as the welfare statistics — so just to separate the two, in the sense that that information was information that the government collects but was completely within the ministry collecting that data.

[1525]

D. Routley: It's convenient that when some devastating statistic like the increase in the welfare rolls is suppressed, that's okay. Then routine information is released, and then the minister claims that positive information would have been suppressed also. Can he give an example of positive information that was suppressed during the election? Maybe deficit information.

Hon. B. Stewart: Again, I go back to the fact that I'm not quite certain how this question is framed around the debate on estimates, but I will just try to clarify this.

During the election period the reality of the matter, in answer to your question, is that there were some job creation numbers that were particularly favourable and available during the campaign, and those figures were not released. But more importantly, information that was a matter of public safety and issues regarding the H1N1 were released by the public affairs bureau, and that's the only exception to the rule that Jessica McDonald's memo refers to.

In a follow-up answer about the tenure of the staff in the records management branch, the tenure ranges from three years to 21 years of service.

D. Routley: What is the public affairs bureau's involvement with B.C. Stats currently? How do these two bodies interact?

Hon. B. Stewart: They don't have a relationship. They're actually in two separate areas, and they don't deal with the same information. The statistical branch is within Citizens' Services and puts out statistics that are commonly collected and put out there. That's their job.

D. Routley: I believe that the minister has just told me that there is no relationship or interaction between the public affairs bureau and B.C. Stats. What is the public affairs bureau's involvement in other program areas, such as the information access operations unit, the alternative service delivery secretariat?

[1530]

Hon. B. Stewart: The relationship, really, with the public affairs bureau and the ministries, as we described yesterday, is that their role is to make certain that issues around getting the ministries' messages out there…. If it's an issue around public safety or issues that pertain to
[ Page 756 ]
the individual ministries, such as Citizens' Services, they will provide services in nature of communications for those individual ministries. That's their role.

D. Routley: One final question in this area. Why does this government employ public affairs bureau staff to transcribe everything the opposition says in scrums, instead of B.C. Liberal caucus staff? Does the minister not think that it would be more appropriate for caucus staff to do this work?

Hon. B. Stewart: First off, the role of the recording and transcription of comments with the media, whether it's ministers or members of the opposition, is that the public affairs bureau is responsible for making certain that the government's information is accurately reported and that it's supporting the news media in making certain that they have accurate information about releases that often come out about public safety and health issues — whatever the issues of the government are that particular day. That's their reason for doing that.

D. Routley: I promised there was one final question, but that answer begs another question.

A Voice: Quite a few.

D. Routley: Yeah, quite a few.

We have a situation where we have the public affairs bureau's staff transcribing and recording everything an opposition member says to the media, and the minister has told me that that is simply ensuring that information is accurate for the government and is backstopping the media and supporting their work.

But I'd like to know: are these communications being shared with the B.C. Liberal caucus?

Hon. B. Stewart: No, that information isn't shared with the B.C. Liberal caucus — just with the ministries.

D. Routley: Mr. Chair, that is a nuanced answer. It's not shared with the B.C. Liberal caucus, just with the ministries. It's shared with the ministers, so it's shared, essentially, with the executive council of the B.C. Liberal government.

Is that what I hear from the minister — that this information, recorded at public expense by the public affairs bureau, is being shared with the B.C. Liberal government executive?

Hon. B. Stewart: No. The situation is that it's vitally important to make certain that the ministers do know what's being reported about their ministries in those actions, and as such, that information is reported to the ministries as a part of the role of the public affairs bureau to make certain that the message and the information that the media are putting out there and getting is accurate and is handled in a timely manner so that there's no misinformation about missing or lost details.

D. Routley: Can the minister assure this House that his public affairs bureau's real-time transcripts of opposition members' scrums are not being used for partisan political purposes?

[1535]

Hon. B. Stewart: I can assure the members that they're used to manage the media relations that are required for the government, and that's the reason for the transcription in the first place. Ministerial responsibilities are making certain that the citizens of British Columbia are entitled to make certain that the facts around ministerial decisions and programs are accurately reported in the media.

D. Routley: Wouldn't it be more appropriate to use B.C. Liberal caucus staff to record the opposition members in scrums rather than the public affairs bureau?

If the minister thinks that it's appropriate for the public affairs bureau to be employed monitoring and recording the comments of opposition members, are they also doing the same with all the government members? And if they are sharing that information with the ministries, would he also commit to have that information and those transcripts shared with the opposition members and the critics?

Hon. B. Stewart: I hope that I can answer this one final question, just the last time.

You know, I can speak to you from personal experience. The first time I actually saw a transcription of anything that I even said was yesterday in the House, as I was walking out of here after your question about the Telus shares.

I can tell you personally as a minister that I don't see the transcription for other ministries. The public affairs bureau does not share the transcription information with other MLAs within the government caucus. It's used for the purposes I stated — for the ministers to manage their ministry and make certain that the citizens of British Columbia are getting the information that they require in an accurate and timely manner and that it's reported correctly.

D. Routley: With that, I'll hand the questioning over to my colleague.

H. Lali: We'll give a chance for the minister to bring in the staff for the Public Service Agency. That's what I'll be talking about.

Hon. B. Stewart: I'd just like to introduce the addition of Bette-Jo Hughes, the assistant deputy minister for Service B.C.

[J. Thornthwaite in the chair.]
[ Page 757 ]

H. Lali: I would like to begin my portion of the estimates by, first of all, thanking all of those thousands of individuals who work for the public service here in British Columbia and also in the greater public sector. I think there are probably well over 300,000 people in total, if I'm not mistaken. There might even be more than that.

[1540]

I want to thank each and every one of them for the job they do on behalf of all British Columbians, not only to make sure that the apparatus of government — government in its larger context — works but also in terms of the delivery of services and programs that are delivered for the betterment of all British Columbians. So I want to thank each and every one of those thousands of people.

Also, at the same time, I know the minister has a number of staff sitting around him and with him and a few others who are to my left, actually in the galleries, who will be part of the estimates in the next hour and a half or so. I want to thank all of these senior management personnel, whether they're in the executive or middle management.

I want to thank each and every one of you, as well, in terms of not only providing the direction, the administration for the ministry but also for the support that you provide for the minister. I want to start off by recognizing the hard work that you do not only on behalf of the minister and the ministry but on behalf of the people of British Columbia.

Having stated that, I'd like to ask the minister if he could tell me, in terms of the Public Service Agency…. I specifically want to talk about equity hire, which is also known as the merit principle under this government. In the public sector what is the general participation of the four disadvantaged groups, or the equity hire groups? Those would be women, aboriginal people, people who are a visible minority and persons with disabilities.

What is the participation rate of those individuals within the British Columbia public service?

Hon. B. Stewart: Madam Chair, thank you for joining us. To the members opposite: thank you for the appreciation that you've expressed for the over 30,000 public service employees that we have in the government. We all value them, and they're an incredibly important asset.

In answer to your questions about visible minorities, women, aboriginal peoples and people with disabilities, I'll give you the percentages that exist. The percent of women in the public service is just under 60 percent at 58½ percent. The percent in senior leadership roles is 39.5 percent. In visible minorities, we're at 10.1 percent. In aboriginal peoples, we have 2.8 percent, and in persons with disabilities, 4.1 percent.

H. Lali: I think the minister provided two figures for women — the 58.5 percent, which is in the general public service, and in senior positions, 39.5 percent. But the other three figures that he gave…. I was wondering if those are general, or are they for senior and middle management positions — for aboriginals, visible minorities and persons with disabilities? For abbreviation, we'll refer to the group as PWD. It gets to be a bit of a tongue twister.

Hon. B. Stewart: Those are in general, those numbers.

H. Lali: Will the minister, then, let me know, first off, if this is according to the general labour force numbers for B.C., or are these the federal stats that are kept? That's the first question.

[1545]

Secondly, will the minister provide the numbers for senior and middle management for aboriginals, visible minorities and PWD?

Hon. B. Stewart: In answer to the first part of the question, these percentages are the representatives of these categories within the public service employees, within government, that are self-declared. We do not have the numbers in terms of the three categories that you mentioned — visible minorities, aboriginal peoples and persons with disabilities — in the breakout as to how many are in a percentage of leadership. We could try and provide that to you at a later time.

H. Lali: Why are these numbers not collected, for those three groups that are missing here, for senior and middle management positions? And why is it that we have the information for the women's group but not for the other three groups — for both categories of general labour force survey and the specific ones for senior and middle management?

Hon. B. Stewart: I guess the reason that this information is not as readily available as we would perhaps like to have it is that, just at the time, it's not something that is collected on employees. Originally, we would have identified male or female employees. Subsequent to that, government started to collect the data on new hires.

It's our intention to move towards trying to update that data. The above data was based on employee self-identification, and only new hires are surveyed. No follow-up is done on persons who responded in previous years.

This likely understates the number of persons with disabilities who are employed in the public service. As a result, we are exploring the possibility of surveying all employees again using the work environment survey in the 2010 cycle.
[ Page 758 ]

H. Lali: The minister said that it's through self-identification. But when you look at the numbers generally in the public service, through self-identification the minister or the ministry has those numbers.

Perhaps the minister, first of all, can tell me: how many positions are we looking at in senior and middle management? We know there are over 30,000 in the public service. Obviously, one assumes it's a lot smaller number in the category of middle and senior management, the executive level.

[1550]

What's the total number of people we are looking at — the senior and middle management level? And why is it that the numbers are readily available under self-identification under the general public sector but not for the smaller group, where it's easier to get those numbers for the specific group that I mentioned, the senior and middle management?

Hon. B. Stewart: In answer to the senior and middle management within the public service employees, we have 6,000 that are identified as managers.

In regard to your question about why the government doesn't have that information, we have two different systems. We have, of course, our payroll system, where we've identified quite easily who is male and female. As such, the payroll system also identifies who's in management.

The level of detail that you're talking about, in terms of the equity-based, is no less important. But the reality is that we don't do that through the payroll system, and it has to be collected in a different manner. As such, it requires a cost and effort that hasn't been undertaken. As I mentioned, it's hoping to be undertaken in the 2010 cycle, but that's the reason. There are two distinct systems.

H. Lali: I've got two questions. The minister has given me a number for middle management — around 6,000. In terms of senior management, then, what's the number for senior management? I'm assuming it will be smaller than 6,000. That's the first question.

The second comment I'd like to make before the question is that the minister says that's something they're going to do in the future — to try to collect that information that I'm looking for. I stood right here with a different minister, hon. Chair. It was 3½ years ago, in the spring of 2006, when a different minister promised the same thing, and here we are 3½ years later.

Is the minister now telling me that the government, this Liberal government, has made no effort whatsoever to actually act upon those questions and collect the information that I'm asking for and that British Columbians are asking for? That will tell a story in terms of what kind of commitment this government has for the promotion of equity hire — or merit hire, as it is called under this government.

So there are two questions. One is a specific number for senior management. Secondly, why hasn't anything been done in the last 3½ years to actually collect the kind of information that I'm asking for?

[1555]

Hon. B. Stewart: In answer to the questions that you had asked about senior managers, out of the 6,000, 130 are senior managers.

I think that it's important, with your remarks about how much we appreciate the public service, to recognize that the public service employees and the Public Service Agency and the government have been recognized as one of British Columbia's top 50 employers. That's not an easy task to do and especially not with the public service in terms of how often people are critical of organizations such as a bureaucracy such as government.

The government and the Public Service Agency have done amazing things in terms of the recruitment and the retention of staff, knowing about the impending issue of people that will leave our workforce over the coming years because of retirement.

I want to make certain it's completely clear that with this government and the Public Service Agency, all of our jobs are open to anybody with any of those issues that you bring out. The visible minorities, aboriginal peoples and persons with disabilities are completely open and able to apply for any one of our positions within government.

The issue about the survey. The reason it hasn't been undertaken is that there's a relatively high cost to surveying staff for this particular issue. It's only until recently that there's been a way of integrating it into an employee or a work environment survey that will give us the benefit of having them self-declare. You might be aware that some people feel that this is a privacy issue, so they obviously may not declare.

I'm happy to tell you that in the category of visible minorities, since 2001 our percentage in the public service has increased from 7.1 percent of the workforce to 10.1. In aboriginal peoples it's increased from 2.1 percent to 2.8 percent, and persons with disabilities have decreased from 5.6 to 4.1.

H. Lali: This is not a record that one should actually be proud of. I'll tell you why. I see the minister wincing a little bit. Let me explain. Maybe he won't then.

Between '01 to the present for aboriginal people, he said it's gone from 2.1 percent to 2.8 percent. The aboriginal population in 2001 was about 3½ percent in British Columbia. It is 4½ percent and is actually the fastest-growing population in British Columbia.

The minister said that in 2001 visible minorities were 7.1 percent. It's now 10.1 percent. I would also like to point out to the minister that the numbers of visible
[ Page 759 ]
minorities in the last eight or nine years have gone from about 12 percent to 23 percent in this province.

[N. Letnick in the chair.]

I know the minister has given these numbers, but these are the general numbers. These are not for senior or middle management. In middle management the minister said there are 130. So obviously, these are not numbers that are reflective of the general workforce that includes all of British Columbia and the private sector as well.

[1600]

I'd like to point out to the minister that in the private sector they have recognized the need to be not only fair, but also, they have recognized the need to promote people from the disadvantaged backgrounds — women, aboriginal people, visible minorities and persons with disabilities — not only in terms of entry-level and all jobs within the private sector. They've also felt the need to be actually promoting people into the middle- and upper-management level because it makes good business sense.

In some instances there is an overrepresentation from these four disadvantaged groups in the private sector, especially in the retail and service sector, especially when they're selling goods and services. They know, for instance, in the visible minority group, that if they are to hire a person who speaks a different language who also happens to be a visible minority, it's good business, when those customers come in, to be able to sell goods but also to provide the services.

But when you look at the public sector, especially right here in British Columbia, government doesn't seem to think so. I mean, governments are in the business of — you can call it a business — providing services to British Columbians, to constituents, and the makeup of the constituencies in this province reflects all of those folks that are listed right here in those four disadvantaged groups.

When constituents come to MLAs' offices, constituents come to ministers, constituents go to agencies, boards and commissions and ministry offices in large cities, medium-sized cities, towns and small villages across this province, not everybody speaks the language of English.

My question is to the minister. Does it not make good sense to make sure that people from the disadvantaged backgrounds are being welcomed and promoted into all sorts of positions, including middle and senior management positions?

I would think that the reason we are not able to, in estimates, ever get the numbers from ministers of the Liberal government, other than women's groups, because there have been great strides that have been made in terms of promoting women into middle and senior management positions…. Of the six people sitting around the minister, four are women. That's really good. There are more sitting to my left in the gallery. That's really good, and I think all of government should be proud of that.

I think one of the reasons we're not being supplied those numbers that I'm asking for in middle and upper management is because government knows, and this minister knows, that it's a dismal record and doesn't want to share that with us. Ministers of the Crown can't keep on hiding year after year behind the cloak of privacy and saying, firstly, as I heard the minister say: "It's costly." We're talking about 130 positions in senior management, and he used the word costly.

Secondly, he used the issue of privacy. No problem getting those numbers in the general labour force survey for British Columbia for women, aboriginals, visible minorities and PWD. But when we ask for those positions where it matters, where the power lies in the bureaucracy, in those senior positions — deputy ministers, assistant deputy ministers, directors, executive directors, managers, upper managers, senior managers…. Those are the positions we're talking about, people with the power to make change.

I've seen minister after minister hide behind the cloak of privacy. I want to ask the minister: has any effort been done to actually put out a survey to those 130 people — let it be through self-identification as he talked about — to try to see what kind of numbers we're coming back with for all of those three categories that are still missing.

It's easy to tell who is a person of a visible minority background. We're talking colour here. It doesn't take too much for anybody to tell that the minister is white and that the critic over on this side is brown. I'm a visible minority. It's not very hard for somebody to do that, actually — for either the minister, a deputy or somebody assigned by cabinet to actually talk to the 130 people that he's talking about.

[1605]

It's not too difficult to actually tell when somebody has a disability either. It's not too difficult to tell when a person is of an aboriginal background, to be able to do that either through a survey that self-identifies or somebody actually sitting down to do the job. Year after year we get the same excuse of privacy or not enough money to be able to do that job.

Will the minister commit to actually coming back and bringing back a report to the Legislature, to this House, with the figures for these three groups: aboriginal groups, visible minorities and persons with disabilities in senior management positions? Will he do a survey and come back with the findings? And give us a timeline of when he's able to do that.

Hon. B. Stewart: That's quite a lot of information that the member opposite put out there, and I want to make certain that the record shows that this government has
[ Page 760 ]
an exemplary record in terms of its efforts to be inclusive and welcoming into government.

I can assure the member opposite that the government has made progress. It may not be perfect. Just in terms of some of the comments that you made about the overall general population in terms of ethnicities, etc., I'll give you some important statistics that are factual and not just general, because the general numbers don't address the issue as to who is available in the workplace.

In terms of visible minorities, just to read back these statistics, the available workforce in visible minorities in 2001 was 13.6. Today that number is 14.8, an increase of 1.2 percent of the population. In the public service the percentage of visible minorities in government has gone from 7.1 to 10.1, an increase of almost three times what the increase has been in the available workforce in British Columbia. That record speaks for itself. It doesn't address the issue that 28 percent of the population in British Columbia is from a different ethnicity or identify themselves as British Columbia and Canada not being their first home.

Aboriginal peoples. We've seen their population base increase in the available workforce of 0.5. The government's record is a 0.7 percent increase. We've exceeded the increase in terms of their population. So in those two particular categories, we have succeeded.

There has been a decrease in persons that are available in the workforce that have disabilities from 5.5 down to 4.4. So the available workforce of disabled people has decreased, and as such, the government's record reflects that decrease.

I want to assure the member that we take these matters seriously and not frivolously and that we will undertake to produce what he asked for. A survey will take place some time in the 2010 year, in April, with the results available by the end of June. I would hope that would satisfy his criticism of the Public Service Agency and employees.

H. Lali: I'd just like to correct the minister. My criticism is not of the Public Service Agency or the public service. My criticism is of the government and of the cabinet. I just want to correct that for the record.

I want to thank the minister for actually putting a timeline of April 2010 to do the survey and to come back with the results in June of next year. So I want to thank the minister for that.

[1610]

I also want to point out to the minister that the federal government has an Employment Equity Act. I understand that the federal government actually has legislation that requires compliance by their ministries and also by their Crown corporations. Reporting progress under the federal Employment Equity Act is for all government departments, for the Crowns under the federal government and also for the regulated sectors such as the banks and also telecommunication sectors.

[H. Bloy in the chair.]

Will the minister support here in British Columbia a similar employment equity act that has a provision for compliance for government and also for Crown corporations to not only promote equity hire but also to come back and provide the House with the progress that is going to take place? Will the minister also commit to taking up the cause to make sure that the government actually does that?

Hon. B. Stewart: In the Committee of Supply it's not really typical or appropriate that we discuss matters of legislation, so at this time I can't make the commitment that the member opposite is requesting.

H. Lali: I'm not asking the minister to make a commitment, if that's what he's worried about, specifically towards the legislation. Then I'll ask the question in a different way.

Will the minister support the idea and take it up with his colleagues that government ought to be doing something to promote persons from disadvantaged backgrounds, the four groups, into senior management positions — and also come back with the reporting of any targets that may be set, whether they've been met or not and what kind of progress is taking place?

Hon. B. Stewart: I want to just restate that I have no problem with the idea of trying to encourage visible minorities as well as disabled, aboriginal or women into government, but I think that the government's record clearly speaks for itself. This government has worked very hard in terms of trying to work within the aboriginal community, providing economic opportunities and inclusiveness in terms of getting them involved, in terms of being sustainable on their own.

I have no problem in defending the government's record on this, but more importantly, I go back to the Public Service Agency that does make these things. They've achieved recognition amongst their peers, amongst other corporations within British Columbia, against any of the ones that you talk about that are regulated, as one of the top 50 employers in the province. It's very difficult to become of that status if you are a second-tier type of employer. They're at the very top tier. They're recognized for it. People like to work there.

I can tell you that I was in your riding. I met the staff at the Service B.C. office. Lots of visible minorities, French-speaking, aboriginals are working there and happy to work for Service B.C., for the people that are here. Frankly, I've met them from Fort Nelson to Prince
[ Page 761 ]
George, down to the coast, and I can tell you that these are people that are proud of the work they do.

The leadership opportunities…. I'm encouraging it, because the fact is that we've identified that we have a leadership issue occurring in government because of ongoing retirement, as we've talked about. We've identified that there are going to be those issues coming in the future, and the fact is that this government, the employment agency, is particularly committed to this.

[1615]

We have no reason to apologize, but frankly, it's still not a matter to be discussed in this House around estimates.

H. Lali: Well, I would disagree with that. Estimates is the right place to be discussing these kinds of matters. You know, the minister himself just admitted it. He walked into the service office in Merritt and was able to tell who was a visible minority and who was an aboriginal person. But nobody in this government, since 2005 when I got re-elected, has been able to tell me out of those 130….

I ask this question year after year after year. I keep getting promises from the various different ministers that they will do the work, that they'll endeavour to do something, that they'll try something, that they'll make an attempt. But nobody in government, in this Liberal government, is able to tell me out of those 130 people how many are aboriginal, how many are visible minorities and how many are persons with disabilities. They can tell by the gender, because it's a checkmark on the self-declaration there.

The minister just proved to me right here in this committee room that he's able to go into an office and tell who is a visible minority and who is an aboriginal. But nobody in government can tell me how many of those 130 belong to those categories. I find that difficult to believe. I find that really hard to believe. The minister talks about the record that he's real proud of. It's a dismal record. It's not anything to be proud of.

As the percentage of the general population in B.C. increases for both aboriginal people and for visible minorities, the government is not keeping pace with promoting folks not only in terms of the general public service but…. My question, sir, specifically related to senior management.

I want to switch the minister's focus. I don't want any more numbers from the minister that are from the general public service. I want to talk specifics about senior management, because that's where the power lies, and that's where the changes would occur.

It is a dismal record, and I would suspect, hon. Chair, that's one of the reasons not a single minister of the Crown in the last four or five years has been willing to come up here and actually tell us on record what those numbers are. They know the numbers. They just refuse to do it, because it's dismal.

When I look around this room and I see how many aboriginal people from the upper management level and how many people from visible minority backgrounds or persons with disabilities are present in this room from the staff that the minister has, it tells me a story. And it should tell the new minister a story as well.

This record is not anything to be proud of, because this government hasn't done its job that it promised it would do before 2001, before they got elected. That, I suspect, is the reason why they don't want to share the numbers. I suspect they have the numbers, but like anything else, those numbers are not being shared.

I want to ask the hon. minister: how many hiring panels are there in government? How many people from these four backgrounds — women, aboriginal, visible minorities and persons with disabilities — occupy those seats on the hiring panels?

Hon. B. Stewart: I want to restate a couple of numbers that I read into the record earlier. The managers, the leadership positions, are roughly about 20 percent. Sorry. It's more than 20 percent. It's 6,000 of our 30,000 employees. So roughly ¹⁄5 of our entire workforce is in management.

The surveys and the requirement…. You keep referring to the 130. Those are the most senior level. We've committed to giving you the information as best available by June of next year.

[1620]

The hiring panels that you're referring to is another piece of information. It's one of the tools that's used by the Public Service Agency in its hiring practices but not the sole one, and the reality is that the information is not collected again. That's another level of detail that is not seen as cost-effective use of staff's time.

[N. Letnick in the chair.]

In terms of some of the things that you're concerned about, I'm assuming that your questions are directed at the Ministry of Citizens' Services because you suspect or feel that the government is not doing its job.

I'll quickly tell you that visible minorities represent 10.3 percent of the public service and 13.2 percent of all of our new hires, so the number is increasing. Aboriginal peoples represent 2.8 percent of the public service and 4.3 percent of the new regular hires.

We've opened up employment opportunities to external as well as internal candidates, leading to a 59 percent increase in the number of hires from the external market. We've also implemented ongoing marketing and branding, a program to raise the visibility and the appeal of the public service as an employer. We've established a hiring strategy for untapped markets such as what you suggest, targeting recruitment of persons with disabilities to be
[ Page 762 ]
followed with specific initiatives regarding aboriginal peoples and visible minorities.

Established in September of 2007 was an aboriginal internship program that offers 12-month internship opportunities to aboriginal youth in a ministry and aboriginal organization. I'm proud to say that those awards are taking place here in Victoria, and I'd be happy to get the member opposite an invitation to that announcement when it comes up.

H. Lali: Again the minister actually didn't answer my question. For one thing, I'm asking specifically about the 130 senior management positions. I don't want the minister to even think about the general public service anymore or give me any more numbers based on what job they're doing for bringing in people for entry-level positions, etc., in the public service.

I want him to just focus on one thing — one thing: 130 senior management positions. Let's not talk about the other 31,000 or the 6,000 that he was talking about. That's the first thing.

Secondly, I asked a specific question about hiring panels. There were two parts to that one. How many hiring panels are there in government? And secondly, what is the makeup of them in terms of the four groups? Is there any representation?

I think the second part of that he answered. He says collecting that information — and I wrote it down — "is not a cost-effective use" of time. Boy, that's a pretty loaded statement. It is not a cost-effective use of time to see what the makeup is of the hiring panels.

I will say to the minister that until and unless they put people of visible minority background, aboriginal people, persons with disabilities or women on those hiring panels, nothing will change in this government. Nothing will change in terms of the numbers for participation in senior management levels.

I again ask the minister: how many hiring panels are there in government? How many people are on those hiring panels that are of those four backgrounds — the equity hire, the equity groups? And secondly, if there are no individuals, especially from the aboriginal, visible minority or persons with disabilities background, will the minister commit to lobby the cabinet to start putting people from those three backgrounds on those hiring panels so that we can actually see an inclusion of equity groups in the senior management positions in this government?

[1625]

Hon. B. Stewart: I thought I did actually answer the question about the hiring panels. Just to be clear, hiring panels are not as common as they once were in terms of the way that the government and the public service agency uses…. It does use hiring panels, but they're not the only tool that's used, and they're not as frequent. We don't necessarily…. They're not set up like there's a separate division of hiring panels, that every time we have a dozen or so of these panels working with individuals that we're hiring.

I'll go back to the fact that the government's record on this, in terms of your assessment of the fact that we're not making progress and that we're either restricting or being selective…. I won't use any other words about the fact that we're not hiring, but our record just in terms of visible minorities…. In 2008, out of 2,520 new hires, 13.2 percent of that was from visible minorities and another 4.3 percent was from aboriginal peoples — again, self-identified.

It's not that easy. In some of the cases where there are mixed marriages, etc., it's not as simple as identification. These people have to declare.

Trust me. We're working very hard at trying to meet the requirements. I'm sure that we don't have any…. Our government, as is the Public Service Agency, is all about inclusion and trying to make certain that the representation across government employees is representative of all sectors or all disadvantaged groups, as you would call it.

H. Lali: Very good of the minister to share those facts. It's not that I'm not interested in those facts, but those are not in the purview of my question here. Maybe another time the minister and I can go for coffee, and he can give me all the facts he wants outside of those 130 positions in senior management.

The minister said that the hiring panels are not as common in government as they once were, perhaps in the '90s and the '80s and beyond that. Then I think the minister said that sometimes the hiring panels are used, but they're not as common.

My question to the minister is: when promotions take place or people are hired at senior level positions, if it isn't the head of the hiring panels, then who does the hiring? Could you give me some names of who it is in government that does the hiring of senior staff for the public service?

[1630]

Hon. B. Stewart: In answer to the question about hiring panels, I go back again to the fact that these panels are an HR technique that has not necessarily been in favour in terms of the other processes and assessment tools that are used.

For senior management, as you've specifically asked about, they are recruited by the Public Service Agency, by the top staff in there. They work with the ministries that have identified the need for a senior manager, as to what the skill sets are that are required by that, and the selection process is made between the deputies and the Public Service Agency, with a recommendation from them to the Lieutenant-Governor that they be appointed.

[J. McIntyre in the chair.]
[ Page 763 ]

H. Lali: Will the minister, then, tell me, over the last two years — I won't even go back for the nine years — who those people were that comprised…? I won't call it a hiring panel but some group of selection that actually did the hiring of deputy ministers, assistant deputy ministers, senior staff. How many times had they met to do the hiring? Who were they? Do you have names of these individuals? Could you supply those to me, please?

Hon. B. Stewart: I don't know if I can give you the exact numbers. You're asking for nine years of records as to the number of hires and how many people have been hired. I'm sure that we could commit to a process that would be expensive and costly and probably would not necessarily yield the information that might lead to the constructive kind of work that we're trying to do here today.

What I will tell you is that every time there is a hiring of a senior official, these people are…. As I mentioned, the shortlist is brought together by the Public Service Agency based on the ministry criteria. What ends up happening is that the final selection process is handled amongst the senior staff from the Public Service Agency, deputies from that ministry. The deputy, I think, from the Premier's office, if I've got that right, would be in the final hiring decision of those people for those most senior positions.

H. Lali: Will the minister tell me: is there any directive to ministers and senior staff — the 130 folks in senior positions that we're talking about — from the government, from the Premier or the cabinet, that says: "Let us actively recruit, for senior management positions, people with disabilities, people from the visible minority groups and people with aboriginal background"?

Is there any directive from the Premier or the cabinet telling ministers and Crown corporations to make sure that these people are represented in the public service in senior management positions? Is there any active drive to actually start to either put colour in the senior management positions or bring in people with disabilities?

[1635]

Hon. B. Stewart: Interesting choice of words about how we should be recruiting, but I can tell you that it's the government's policy, in terms of how we implement our corporate HR plan, to actively recruit for these things. The way that it is directed is that the public service is headed up by Jessica McDonald, the deputy to the Premier. She's very much committed to the corporate strategy of inclusiveness and making certain that visible minorities are sought out.

We're an agency, or an employer, that is very much committed to finding the best and most capable people without any exclusions, as I've told you. Our numbers that we've shared with you today show you the commitment of visible minorities in terms of the public service, as well as aboriginal employment — the two facts that they are increasing, even against the fact that their available numbers in the workplace are not increasing as fast as we're hiring them.

If you would like to read the corporate HR plan, you can see that either at the Public Service Agency's website or at the government of B.C. website, and it clearly will describe all of the available information in terms of our inclusiveness and what we try to do as the government.

H. Lali: I totally agree with the hon. minister about the colourful choice of words. It is an interesting choice of words. I think that's what he said. You know, I wouldn't have to use that interesting choice of words if the government's corporate plan that he talked about is actually working, because every year this is the answer we hear — that the government has this corporate plan.

Well, if that corporate plan ain't working, will the minister agree that maybe it's time to fix it? Because it ain't working. It hasn't been working. If it was working, we would find this minister and the previous three or four ministers that I've had to deal with in this chamber right here….

They would be standing up on the rooftops, if it was working, and saying: "Look at these numbers in senior management for aboriginal people. Look at these persons and the numbers in the senior management positions with a visible minority background. Just look at these figures for PWD."

That's what they would be doing. They would be touting it and shouting it from the rooftops. The only one that they provide is for women, because they know that's an easy one to actually come out and say. Even then, 39.5 percent is what the minister told me. It's still not 52 percent, because that's the general makeup of the population. That's how many women there are in British Columbia compared to men. They're a majority of the population. The numbers even lag behind for women.

The corporate plan that the minister is talking about is not working. So will the minister commit — as the minister responsible for the Public Service Agency, as the minister who is responsible for equity hire, as the minister who is responsible — to make sure that when people are hired at senior management positions, the principle of merit is applied first and foremost?

[1640]

I know that the minister used the word "merit," and I want to explain to the minister that the visible minorities forum is a group of people who are of visible minority background, and that's just one example. They provided numbers in the late '90s and also after 2001.

After a survey that was done in the late '90s, they showed that in terms of the qualifications of people in
[ Page 764 ]
government, the people of a visible minority background were equally as qualified as people who were from a non–visible minority background. In many instances, their educational background was actually superior to them, especially as a lot of those folks were actually in senior management.

It wasn't because they weren't applying for positions, and it isn't because they still are not applying for positions. They have been, they are and they will continue to apply for positions. They have the merit, they have the educational background, and they have the employment background. But time after time, they're being overlooked for those senior positions by this government, because that corporate management plan the minister is talking about isn't worth a hill of beans.

Until this minister takes forward a plan and until the Premier gets up and reads the riot act to every one of his ministers, those deputies and the senior deputy minister to the Premier — actually makes a commitment and reads the riot act to the line ministries and the Crowns — things will not change.

I want the minister to remember that. I've said it right here. I've said it before. I'm saying it on the record. That will never change until people of aboriginal background, visible minority background, persons with disabilities and women are on some of those hiring panels that they have or are in those hiring groups that the minister talked about.

Until those people are on that, will the minister make a commitment to make sure that the Premier and the cabinet are on board with the merit principle for equity hire so that people of these disadvantaged backgrounds will get their fair share of the jobs in senior management?

And will the minister actually make sure that the Premier and the cabinet are on board with putting people in those groups that hire these senior people — that they are from those backgrounds? Will the minister make that commitment?

[1645]

Hon. B. Stewart: I think what we need to do in order to answer the member opposite's questions in regards to the government's record is just stick to the facts. Those facts are that the Public Service Agency and the government of British Columbia have achieved the distinction, for two years running, of being one of the top 50 employers in the province of British Columbia. That's a distinction that many private sector employers would love to have, and we happen to be a public sector employer. We're very proud of that record.

In terms of our representation in the groups that you speak about with merit, the fact is that our record speaks for itself in the sense that the representation of women, visible minorities and aboriginal people are all up in terms of their representation in government, and they all exceed the measurement in terms of how many people are actually available to work in their community. We exceed that by a long shot. So we're certainly not lagging. We're leading.

I think that probably one of the most telling things that you should be aware of is the fact that in 2008, the Financial Post — you probably have heard of it before, a respected business publication — has reported, has measured through census, companies across Canada in terms of what their record is like. Their record is 11 percent, the number of women in their workforce.

You use the women's workforce in terms of the percentage and how high it is, and I'll give you the exact numbers. The exact number of women available in the workforce in British Columbia, available to work, is 46.6 percent. Of our numbers, 58.5 percent work for the British Columbia government in the public service employ. Of that number, we're very proud that 40 percent represent the government in a leadership role.

That's a record that speaks for itself. I don't know how you can deny that. You can continue to do that, but those are the facts. I won't repeat them again. I hope that's satisfactory.

H. Lali: No, it's not, actually, because the minister didn't answer my question. The fact of the matter is I wouldn't be sitting here asking these questions if it was satisfactory.

I think the minister has given a lengthy answer but didn't answer the question. The question was very specific. The question was: will the minister develop a plan, work towards developing a plan — talk to the Premier, convince his cabinet colleagues to actually put forward a plan — that actually works, that's going to put aboriginal people, persons with disabilities and visible minorities in those senior positions, where they're not right now?

It's the senior positions we're talking about. Time after time, the minister skirts the issue. He doesn't want to talk about the exclusive club of senior positions that has put an iron curtain around itself and will shut the gates and won't let people of those three backgrounds, especially, in.

My question is simple. Will the minister work towards and put forward a plan to break down the iron curtain, to open the gates and actually put an effective strategy and plan in place that will include in senior management positions people with aboriginal, visible minority and PWD backgrounds, so that I don't have to keep looking around the room and pointing out to the minister that I don't see anybody here with a Chinese, Pakistani or Indian, Japanese, African or Arabic background, Caribbean and all of those visible minority backgrounds, aboriginal background, people with disabilities?

[1650]

It doesn't matter what background they're from. But so I don't have to look around this room and say: "This is
[ Page 765 ]
not something that we should be proud of." There ought to be people in that exclusive club who, based on merit, have every right to be a part of that club.

It's a simple yes or a no from the minister. Will he work towards making that happen?

Hon. B. Stewart: I just want to reiterate that the government does have a plan. The plan is available, as I mentioned. You can either look at it at the Public Service Agency website or the B.C. government website. It clearly lays out what our objectives are in terms of all of the minorities that you referred to.

H. Lali: I'm really sorry to hear that the answer to my question is no.

With that, I'll turn it over to my colleague from Nanaimo–North Cowichan.

D. Routley: I have one more question related to this vote, and it involves the public affairs bureau. Earlier I was asking questions about the role of the public affairs bureau staff who monitor and record every scrum that an opposition member has with the media. I implied to the minister that I think that there's a partisan nature to that. The minister replied that, no, there is no partisan nature to this activity — that, in fact, those employees of the public affairs bureau are simply ensuring accuracy when the media reports on government affairs.

If that were the case, why are all the public affairs bureau's employees who do this function political appointees? Wouldn't it be assumed, then, that if they were simply ensuring accuracy, they would be public servants? They have all been political appointees. Does it take a political hack to ensure accuracy coming out of a scrum with an opposition member?

Hon. B. Stewart: I just want to make certain that…. You know, the public affairs' stated role is to be there to support the ministries that they work in, and that's why those are all order-in-council appointments.

D. Routley: An inadequate answer to the question. It's pretty obvious, Minister…. Here we have every scrum of an opposition member, every word they say to the media, being recorded and transcribed by people paid out of the public purse. So the people are paying for these employees of the public affairs bureau to do work that, in my opinion, should be done by Liberal caucus members because it's clearly partisan. It's clearly meant to tailor the government's message for success, and I think anyone who observes this would reach that inescapable conclusion.

The minister avoids confirming that, as I'm sure everyone expects him to, but it's clear, and I think it's an inappropriate use of public funds.

[1655]

Vote 20: ministry operations, $164,136,000 — approved.

On Vote 21: benefits, $1,000.

D. Routley: In this vote, I assume, are included the benefits for all the public sector employees. I would like to ask the minister whether he has done any work in examining what the effect of the MSP premium increase will be on those benefit plans — this is an 18 percent increase over three years — and whether he has done that work and shared that work regarding this impact as it pertains to school boards and other public agencies.

Hon. B. Stewart: We have done some work on that, and we have included in the budget, under this vote, to account for the additional $1.5 million cost that it will take from January 1, 2010, until the end of fiscal on March 31, 2010. However, it doesn't cover the broader public sector. That's not included in that. The amount, $1.5 million, is the annual increase to the public service. So the budget is for one-quarter of that.

D. Routley: Could the minister provide for me a breakdown, ministry by ministry, of exactly what those implications are to all of those benefit plans and employees? I should also add: could he provide that for the broader public sector?

Hon. B. Stewart: Just to clarify the member's question there, first of all, it isn't available — the information as to the impact on individual ministries — because of the fact that the public service employees are all part of one organization that's employed by Citizens' Services for all of the ministries in government. So it's not broken down.

[1700]

We don't have the information. We're not responsible for the broader public sector, so that information is not something we're responsible for.

Vote 21: benefits, $1,000 — approved.

D. Routley: I would like to add some summing-up comments and give thanks to the minister for his participation and to all of his staff. They've been very helpful, and I appreciate their input. I know that they are good people who work very hard to serve the citizens of British Columbia. Those are my nice comments for the staff.

The more difficult side…. I appreciate the minister. I find him quite a likeable fellow and very, very gregarious across the room. I think we could be friends over a cup of coffee or a glass of beer, but I have a very large problem with a government that promised this province the most open and accountable governance that the universe has ever perceived.

B. Ralston: The galaxy.
[ Page 766 ]

D. Routley: And yet we have — yeah, the galaxy — reports by groups like the Freedom of Information and Privacy Association of this province, titled Failing FOI, that's just been released.

We have our excellent commissioner Mr. David Loukidelis condemning the government's performances when it comes to providing access to information, to the preservation of documents. He has even described their performance as threatening the historical record. This is in an age when we can easily do all of those things. We can preserve our historical record like no other age before us.

Yet what we see is the leveraging of all of those tools against public participation and knowledge. Those are essential ingredients and essential tools of any democracy. Any democracy that functions in a healthy way needs informed citizens. When we see this failure to live up to the obligations that they've set for themselves, Madam Chair…. It's not as though someone came down from that galaxy and said: "This is what you must do."

They set that standard, and they've failed to meet it. That's the truth. It's really a shame for democracy. It's really a shame for the young people that I bring to this House on job-shadow who come here wide-eyed and in expectation that they're going to see something that honours them and honours our communities, honours the seniors who passed down these tools of democracy. Yet they are being abused by this government's failure to live up to this commitment to open governance.

I would encourage the minister and every member of the government and every person who has anything to do with the preservation of record and the access of people to the information on how they are governed to take a hard look at what we are doing and what this government is doing. It's time for us to measure up.

People live their lives by a set of principles. Those principles are commitment, empathy. They are people who care. They want honesty; they want clarity; they want commitment to the province, as they give commitment to the province. They're ready to stand elbow to elbow, put their province first and face whatever problems confront us. But if the problems are hidden from them, if the true state of affairs isn't shared with them, then our democracy dysfunctions.

It is dysfunctioning now. When we can see a government hide information before an election campaign — when we can see a scandal the size of the B.C. Rail scandal affected by government's unwillingness to share information, and what appears to be deliberate destruction of documents — it is shocking.

It is an abomination to the process, and I would beg this gentleman…. I think he's a very friendly fellow, and I do like him. But you know what? This is an abysmal failure of the people we serve. They send us here with a higher expectation. So I'll beg the minister. As we've gone through all these issues and I've had to ask him questions that are difficult, his staff have helped him dance a very elegant dance around the truth in several of these areas.

[1705]

I beg the minister to reach into his conscience that brought him to this place to serve his constituents, to do whatever he can within that government to bring more openness, to bring more clarity and to bring more integrity, which I'm sure he possesses. I'm sure he is a man of integrity, and I'm sure that he will go from this room straight into his cabinet and ensure that the level of integrity there increases and that people of B.C. can expect the principles they believe in to be defended by their government.

The Chair: We'll have a short recess as we move to the estimates for the Ministry of Forests. Five minutes? That will bring us to about a quarter past five.

The committee recessed from 5:06 p.m. to 5:10 p.m.

[J. McIntyre in the chair.]

ESTIMATES: MINISTRY OF FORESTS
AND RANGE

On Vote 31: ministry operations, $464,137,000.

Hon. P. Bell: It's an honour for me to be here again today to speak to the estimates of the Ministry of Forests and Range and later on to the estimates of the integrated land management bureau. I understand that that will take place perhaps a week from Monday.

I'm accompanied by a number of staff here today. I have, immediately to my left, Dana Hayden, who is the deputy minister for the Ministry of Forests and Range. Behind me I have Melanie Boyce, who is acting chief forester.

I have Dave Bodak, who is our expert on service plans and will be able to help us through that; Bob Friesen, assistant deputy minister responsible for the policy branch and everything good in the ministry; Brian Simpson, who is with the protection branch and who has been a champion of some of the challenges we had in fire this year; and Craig Sutherland, who is our DFO. Okay, there we are.

I think it's very appropriate that we are debating the estimates of the Ministry of Forests and Range in this particular week, given that it is National Forest Week — very appropriate that we do that. The theme for this year's National Forest Week is "Strong roots, green shoots." I think that that perhaps best describes our forest industry where it is today. We have had great challenges, particularly over the last 18 to 24 months, but
[ Page 767 ]
there are some green shoots showing, and we do think that we're in the process of seeing some recovery.

This province has generated tremendous wealth from our forests over the decades, if not the last century. I was in Prince George on the weekend and attended a history event of the forest industry. They were reviewing the forest industry through the 1950s, and they had some videos of sawmills and so on. It really reminded you what built this province and how important the industry is.

I've established four key priorities in the ministry that I think can help drive us forward as an industry.

The first one is focusing on improved utilization — making sure that we maximize the value from all of the timber that we harvest. For a long, long time that has not been a priority of the industry. I think that's unacceptable. We need to capture the value from that waste material or the perceived waste material that has been left behind.

I think we've made good headway in the last year on that particular area of focus, not so much on Vancouver Island and the southern part of the province, but in the central interior we've seen significant headway where there are existing bioenergy facilities located, starting to capture value from those stands.

A year ago there weren't any recapture opportunities of that particular material. Through some strategies that we've deployed, we're seeing about 30 grinders across the province consuming each about 100,000 cubic metres per year of this biomass, of this old slash pile material, taking that in and creating pellets with it, creating bioenergy with it — really, creating incremental value. I think that's a very good news story.

We hope to continue to grow that to the point, really, where there is no need for burning of slash piles anymore in the province. We think that's a realistic target within the next year or two.

The second key area, of course, has been silviculture. We released a discussion paper prior to the election. The parliamentary secretary for silviculture has been out actively working with industry, talking about the discussion paper, looking for the key initiatives where we can really advance silviculture in this province and start focusing far more on growing trees.

I was speaking with the critic just before we started this debate and commenting that one of the key elements of filling the midterm timber supply falldown is enhancing the second-growth qualities of those stands, bringing them on earlier and giving us the opportunity to ensure that our mills continue to have the fibre that's necessary for them to operate over the long term. Advanced silviculture is going to be a key element of that particular part of the business.

The third key focus has been our unrelenting efforts in China. We've had very real successes over in the Chinese marketplace over the past 14 months and going back a number of years, actually, now. I can tell the members opposite that last year we managed to put about 720 million board feet of lumber into China. That's the equivalent of about three midsize interior sawmills, so it's a significant amount of lumber. That was double what we'd sold the previous year. Again, we have been growing that exponentially over the last five or six years.

[1715]

So far, as of July, this year we have now exceeded the amount of lumber that we shipped into China in all of 2008. We're just under 800 million board feet of lumber into China as of the end of July, and that is continuing to grow. The expectation this year is that we'll be in the range of 1.3 billion to 1.4 billion board feet, which again, translated to the number of sawmills, would be five or perhaps six, generously, large interior sawmills. So very good news in that marketplace, and I'm sure that we'll have an opportunity to discuss that.

Finally, our wood-first initiatives, building larger buildings out of wood. I introduced a piece of legislation in the House yesterday, requiring all buildings that have provincial government funding in them to utilize wood at every opportunity. A series of best practices will evolve from that, but also other initiatives, like the wood innovation and design centre in Prince George and, really, a desire to increase the architectural and engineering capacity in the province so that we have the capability of building these large structures out of wood rather than perhaps what has been historically the easy way, which has been concrete and steel.

Certainly, the software systems have been available over the decades to do these large buildings out of concrete and steel. Wood is a more complex product to work with, but we're looking forward to growing that.

Underlying all of this, though, is a firm commitment to employee safety in our forests and in our manufacturing facilities. We've worked hard over the past number of years — the past two years in particular — with the Forest Safety Council, with WorkSafe B.C., with all different partners from across the forest industry — unions and management alike — to move forward and reduce the number of accidents. There has been some success. We have much more work to do, and we readily admit that. This is a firm commitment and something that we will continue to focus on.

Implementing the Working Roundtable report is also an endeavour that we're pursuing aggressively. Post-election, of course, with the change in deputies in the ministry, my new deputy minister helped to co-author that particular report. We wanted to send a clear signal to the industry that we were serious about implementing the report. We think that the recommendations in it can help move us forward.

I want to disclose and talk a little bit specifically about the budget, just for a moment, so we get that on the table. Hopefully, that will help the critic in his role of asking
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constructive questions over the next few days. There were some reductions in our budget. I just want to outline some of those budget reductions so that the critic knows specifically where those came from.

In administration and transfers, there was a $2 million reduction as a result of the forest round table no longer being active. So the forest round table wound up at the end of last fiscal year. It had been funded up until that point. So that money was no longer required.

There was a reduction of $3.779 million in shared services. Those are the services across government that we've typically used. There was $413,000 transferred to community development as part of the job opportunities program. That was a staffing transfer that took place. Also, $577,000 was transferred to Finance, and that looks after all the informational advertising that we would normally do around things like fires and those sorts of events, making sure that people are aware of fire restrictions in the province. That's typically what would fall in that area.

There was $3.1 million transferred under the Crown land use enhancement programs and $7.74 million in savings through administrative efficiencies across the ministry. Keep in mind that the ministry last year had about 3,700 FTEs, and I can walk the member through the reductions there as well.

The Forest Innovation Investment account was decreased by $32.5 million, and that now leaves with us a base of $79 million. The majority of those decreases were from some of the land-based investment programs. I can walk the member opposite through those, if he'd like. However, we did increase our marketing efforts into China and provide incremental money to the Forest Innovation Investment as part of that.

The forests for tomorrow budget for 2008-09 was forecast at $53 million. The actual spending, though, in that year was $44 million. So in '09-10 we budgeted $42.4 million, but we are confident that we will meet all of our targets in terms of the number of trees planted.

That's through some new strategies that we've put in place, particularly around the B.C. Timber Sales program, where we have B.C. Timber Sales sell some of the very low quality stands and support the sale of those stands by using the forests for tomorrow program to go in and plant those stands. Normally we would have had to go in, and forests for tomorrow actually cleared those stands — there would have been a cost that was associated with that — and burn the residual biomass. That's some of the opportunities that we've expanded on in terms of utilizing that biomass for bioenergy initiatives in the province.

[1720]

In the past three years there was $78.6 million expended over 260,000 hectares, planting 18.9 million seedlings across the province, and 12.9 million seedlings will be planted this year. We're projecting 17 million seedlings next year and, we're quite confident, all in the forests for tomorrow program.

In compliance and enforcement, there was a $5.7 million reduction. We are moving to a far more risk-based approach. But also — I'm sure the member opposite will acknowledge — we're harvesting about two-thirds of the volume that we historically have harvested. Clearly, there was an opportunity there.

There was a reduction in revenue-sharing with first nations of $11.25 million as well — and again a reflection of the reduced harvest.

Overall, the staffing in the ministry has been reduced by 21 staff at this point. As I said, we were at 3,700 prior to that change. So with that, I'm happy to take questions from the members opposite.

N. Macdonald: A lot of those numbers, just as we take time and go through this…. There may be repeats. The minister provided an awful lot of information very quickly, so if we do go through and ask for some of those things again, the minister can feel free to expand on any of the questions, and we can go back and look at that later. Since this is over a number of days, there's an opportunity to revisit items as we go along.

Just the opening statement that I would like to make — and I'd also like to give an opportunity to the gentleman who's essentially my co-critic from the Cowichan Valley — is to say that when I was asked to take on this role in June, it was something that I was very pleased to do.

The forest industry is of critical importance to rural British Columbia, and I think that one of the things I'm quite pleased about is that we have a Minister of Forests who is from a rural area. I think that means something, and I know that for us, coming from rural communities, when we're talking about forestry, we're talking about workers that are our friends and our neighbours, very often family members.

When we're talking about a mill, a mill going down means something to somebody from a small resource community that I think is fundamentally different than somebody who has spent all of their life in a big city. That's just natural that we have that experience. So forestry is critically important.

The other thing that I'd like to do, especially in my role as a critic, is I just want to make it very clear to those that serve in the forestry service and especially with this year…. You want to commend the people in the fire service in particular for the work that they did. I recognize people here that are with the minister, and I know the service that they have done for my community, and I know the work that they do across British Columbia for communities like them.

I just want to assure them that any criticism that's implicit or explicit is for the Minister of Forests. His broad shoulders, I'm sure, can take anything that I can
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hand to him. But there should be nothing that is directed towards the staff, which has proven to be very professional and very dedicated to something that's important for my communities.

The difficulties that we have with forestry are well known. I would assert, and I think that the minister would disagree on this, that many of the problems point to a comprehensive failure of what we've seen in B.C. Liberal policy so far. I mean, the facts are well known. We have had unprecedented job loss, and that has hurt communities. We all, coming from rural areas, understand what that failure means, and what it means for families that are forced to move, families that have either a mother or a father forced to move somewhere else. So that failure is real.

We have had an unprecedented loss of manufacturing capacity over the past eight years. We have had safety degradation. The minister talked about that. That's something that we will explore to the degree that we can in these estimates. Those are things that are real and are troubling. We've had environmental degradation, and we have had a loss of revenue.

[1725]

In 2001, certainly for much of the history of recent British Columbia, we would expect revenues to be such that they would at least cover the cost of the ministry, and very often we would look to those revenues to provide services in other parts of British Columbia.

I think that if you go back to the 1990s or 2000-2001, it would not be unusual to have a revenue stream of $1.4 billion or $1.5 billion. Now we're in a period where it would probably be closer — and I'm sure if I looked through here I'd find the number — to $400 million.

While in rural British Columbia we know the importance of forestry, I think very often our colleagues that come from cities don't realize just how much of that wealth comes in forestry and how we all depend on this being successful.

I also want to say that despite the challenges that this industry is facing and all of the things we're going to disagree on during this estimates process, I think that one of the things we would share is that it is still an incredible resource. We have a workforce that is trained; the potential is there. There's every reason, even at this time when there seem to be so many challenges, to be very optimistic about forestry and about the future that's there.

So we're going to try to get a realistic understanding of where we are, as a critic, and understand where money is being spent, and we'll go through some of the policy issues. I'll try to work with the minister and his staff to make sure that we're working in a way so that you can organize your staff and have the ones that we need here in an efficient way.

One of the pleasures of the job that I have is an opportunity, and one that the minister shares, to go to different parts of the province and see different facilities and meet with workers and both share their challenges but also see the pride that people have in their work.

With my colleague, we travelled up through the Island. We also had an opportunity later in the summer to move through Prince George, through areas that the minister represents in Mackenzie and beautiful areas all the way up to Dawson Creek, meeting with workers. The optimism is there.

I want to start looking first, in the time that we have, at the service plan and ask you questions. But before I do that, with the Chair's indulgence I'd just give the opportunity for the member for Cowichan Valley to introduce himself and say a few words, and then we'll begin.

[H. Bloy in the chair.]

B. Routley: I think it was very kind of Norm to introduce me as kind of a partner. I'm not sure that we're partners. I'm the deputy, although I am reminded of that song — you know, they talk about — they shot the sheriff, but they didn't get the deputy. So I'm encouraged by that song. Anyway, you've got to have a sense of humour, and I try to bring humour — a little bit of humour, anyway — to everything that I do. We often take ourselves too seriously.

I want to start out by explaining that I started in the forest industry as a young man, 21 years of age, at the Youbou sawmill — September 16, 1970. I spent the first part of my career working through every job, right from the clean-up man's job through pretty well every position, in the chip plant, in the planer mill…. I didn't do all the jobs in the sawmill, but sawmill, the A mill, the B mill, booming grounds — that kind of thing.

By 1986, I was elected for the first time as a first vice-president of IWA Local 1-80, and I found myself the president in 1990 of IWA Local 1-80. We had about 4,000 members back in those days.

One of the roles and responsibilities that I took on was sawmill rate determination, and as a result I had the opportunity to tour almost every sawmill in British Columbia at that time doing sawmill rate determinations.

[1730]

I've been to the north and through mills in the north and seen the tremendous changes that we've gone through right from the '80s. Actually, the good old days, when you talk about them now, for the forest industry — believe it or not — were really the '80s. When I started, we were making about $3.24 an hour. Then in the '80s, we started to make real progress as far as negotiations.

But the first wave would have been technological change, and then we've had a variety of other disasters from 1991, I believe it was. Then we had the Asian meltdown in 1997.

My experience includes being a pension trustee. I was on the audit committee of the IWA forest industry
[ Page 770 ]
pension plan, also on the benefits plan for the industry, representing all of the forest workers and their health and welfare plans and that kind of thing. I enjoyed all of those different roles.

I had the opportunity to be part of the CORE process and to be part of a group that went to Sweden. We were actually called the B.C. future forest study group, and we were partly funded by the provincial and federal governments of the day to go and look at forest practices in Sweden and come back with a bit of a report. So that was quite an opportunity.

I also had the opportunity to go to Europe and defend B.C.'s forest practice at the time. I remember taking a book that had a lot of wonderful pictures in it about our forest practices and what's happened with replanting and the current stands that exist where there used to be clearcuts and actually had to defend against what, at the time, were groups like Greenpeace showing up at every public sector union throughout Europe, who were arguing that we were destroying British Columbia's forests. We knew that wasn't the case. We went there and went into rooms with public sector unions throughout Europe to defend the forest practices in British Columbia.

I've seen some interesting different points of view in different parts of the world. I also had the opportunity to go with Craig Neeser, who you may know, on a trip to Japan to promote B.C. forest products. I still remember handing pens to big Japanese customers and suggesting that they use those pens to buy lots of lumber from British Columbia, and I thanked them on behalf of the workers and their families and the people of British Columbia for buying those products.

I've seen the good, the bad and the ugly in the forest industry. I know that today we're here to learn about this process. This is new for me as well, and I look forward to the opportunity. I know that the minister is very experienced and has been working hard. I just happen to believe that there are some improvements that we can make.

I'm sure we'll have those differences of opinion and talk about what issues we think we can agree on. Those that we can't agree on, we're going to work forcefully to bring them to your attention.

So with that, thank you for the opportunity to be here, and I'll let my friend and colleague begin the slow grilling process.

N. Macdonald: Just to begin with the appropriations, then. The original February pre-election amount of $524.649 million…. The minister has noted that there are cuts and laid out some of those cuts. Part of it, the minister described as discretionary.

But for this budget, if you could just go through — and if you've done that already, go through again — the definition of discretionary. What, in as broad a description as possible, does the minister define as discretionary spending?

Hon. P. Bell: It might be easier for the member opposite if I outlined kind of what my priorities are and what I said we want to focus our resources on in terms of spending initiatives within the ministry. Then we can kind of extrapolate out from that if the member wants to go through in more detail what some of the changes were that we were prepared to make, which flow from the decisions of what our high-level priorities were.

[1735]

They largely extend back to the initiatives that I talked about earlier on in terms of utilization, in terms of tree improvement programs and silviculture practices, marketing into China and then looking at opportunities to expand the use of wood in larger structures. The direction I provided staff initially was that we wanted to focus our efforts in those areas.

Now, in terms of utilization, most of that is regulatory in nature in terms of the barriers that existed previously for utilization of stands. But some of that has stemmed down to decisions that we make around the forests for tomorrow program, how we would plant those trees and how we'd recover more value from our stands. There weren't really a lot of budget lines tied directly to utilization.

However, on silviculture practices in particular, there are a few areas that I felt were very, very important in terms of continuing to fund in an aggressive fashion — things like the Kalamalka research facility, a facility that's been very, very good in providing tree improvement programs to the province of British Columbia. It's been in place since 1981.

There have been individuals that have had their entire careers at the Kalamalka research facility, who have seen the very first seedlings that went into the area. I actually visited on the weekend with Mike Apsey, who was the deputy minister of the day when that particular facility was opened. The opening minister was Tom Waterland.

They talked about how they established some of the initial stands and how they really created the tree improvement program that has allowed us, by and large, to see improvements of 40 percent and better in terms of overall tree growth as a result of those activities. Research and development in those areas in terms of focusing on R and D and tree improvement programs in particular were a very high priority for me and something that we stayed focused on.

Forest health initiatives are another key area that is important from our perspective. We understand the need to maintain those programs wherever we can.

I mentioned China earlier on and our initiatives in China. In fact, we lifted our budget through the Forest Innovation Investment program, and we're actually spending additional funds into China. I think it was
[ Page 771 ]
about a 17 percent increase in funds marketing specifically into China. Then a lot of the Wood First initiatives, again, tend to be regulatory in nature.

When we looked across the board and made the decisions — and I'm happy to go through them again for the member opposite, if he'd like me to…. When we looked at things like a reduction of two-thirds of the harvest volume in the province from where we were just a few years ago, it made sense to target initiatives where it was reflective of those reduced costs.

When we looked at our C and E complement as an example, we tried to be very measured in the way that we reduced that particular area, but some of the land base decisions that we make through the Forest Innovation Account clearly could be reduced as a result of lower harvesting levels on the landscape as well.

We did what we could to fully utilize the complement of employees. This summer in particular we went to all of our staff and asked them to help with the firefighting that we were doing across the province. At one point in time I think we had 600 or 700 people from the Forest Service that were not regular protection branch members working directly with protection, some of them out on the lines and some of them doing other functions within the protection branch. As the member opposite knows, it was a very tough fire season.

The forest health initiative is very important from our perspective. Silviculture practices, tree improvement practices and all those sorts of things we really wanted to be focused on. The other initiatives that we focused on around forests for tomorrow and making sure that we could maximize the value of those stands of the land base programs, and so on….

If the member would like more detail, I'd be happy to go through them on a more individual basis.

N. Macdonald: Coming back in simple terms, when you talk about discretionary, what are we talking about? Are we talking about travel budgets? What are the budget items that you would describe as discretionary?

Hon. P. Bell: The member opposite pointed out one. Travel is a key one in the ministry. We have extensive travel across the province with the number of staff that we have. We are now making use of video conferencing. In fact, many of the meetings that I attend now we are doing through video conferencing rather than flying people in for a specific meeting. But we're also making far more effective use of our motor vehicle fleet.

We've been very diligent in terms of replacements, making sure that we're only keeping the number of fleet vehicles that we need at each of our 29 district offices across the province and extending the lease periods to reduce our overall operating costs. Those would be two good examples.

[1740]

N. Macdonald: So not every single item. But is discretionary funding, then, just simply travel? I gave one example, but the minister would have a much broader…. You've got all the staff there, so you'd have a much broader range of things that you would consider discretionary. What are the items that are discretionary?

You've talked about travel for meetings, but does the travel restriction extend to people that presumably would go into the field? Maybe you could expand on what the travel restriction is.

Hon. P. Bell: I'll walk the members opposite through six that we came up with. We could keep going if you want, but this will at least give you a start.

In the fleet vehicle area there have been a couple of reductions. We've reduced about 80 vehicles from our fleet of roughly a complement of a thousand vehicles across the Forest Service. We've also gone from three-year leases to four-year leases on our vehicles, which are both significant savings in terms of overall reductions.

I can tell the member opposite that I, wherever possible, am no longer renting cars. I'm using ministry vehicles when I go into various locations around the province.

Our travel reductions have been targeted at 50 percent, but that's 50 percent of the meeting-type travel. When a member of the Forest Service needs to go out to the bush to do an inspection, to view an area, there's no restriction in that particular area. They continue to do what is necessary operationally. So the 50 percent travel reduction is focused on travel for various meetings across the province.

We've also looked across the ministry at BlackBerrys, cell phones — that sort of thing. I can tell the member opposite that I have gone from a BlackBerry and a cell phone to just a BlackBerry now, and I know that's throughout the system. We've reduced the pieces of technological equipment like that.

[1745]

We've also reduced the total number of computers that we have in the ministry. We're only keeping what we absolutely need.

Finally, one of the key initiatives — the member may want to explore this one a bit more — is that we have a tremendous number of resource professionals on staff already — professional engineers, registered professional foresters, technicians and so on. We're trying to do as much work as we can in-house now, as opposed to contracting out a lot of that work.

It's a reflection, again, of the fact that there is an overall reduction in harvest of about a third, so those folks do have incremental time. We're deploying that time into areas where we would normally use contract resources.

N. Macdonald: With the travel, those are policy directives presumably, and those policy directives are in writing. Is that something that the minister would table?
[ Page 772 ]

Then, in terms of all this discretionary spending, what is the total that the ministry is saving with things like reducing the number of BlackBerrys, reducing the number of computers and the variety of things that the minister has talked about? What are the total savings that the minister, through his definition of "discretionary," would describe as discretionary savings from the past year to this year?

Hon. P. Bell: I guess I'm going to have to just get a little clarification if the member actually wants those numbers broken out. If he does, we'll have to get back to him with that information in terms of the number of dollars saved due to reductions of BlackBerrys, as an example. That would be a fairly detailed piece of information.

What I can tell the member is that the administrative efficiencies, which really do lump together all of those cost savings across the ministry, were targeted at $7.74 million. We believe that we'll be able to achieve that objective.

N. Macdonald: Presumably, the bigger part of that would be the travel. The question then is: are there policy directives that are written? And can we have copies of that?

Hon. P. Bell: It is not a policy directive. It is a table outlining where travel would be appropriate and where it wouldn't be appropriate. We don't have a copy of that with us, but we'd be happy to table that tomorrow.

N. Macdonald: Okay, thank you.

Just in general terms…. We don't need specific breakdowns, but of that $7.74 million, can the minister please give fairly general answers as to where that breaks out? I presumed that transportation would be a bigger part of that, but maybe that's a presumption that's inaccurate. Where are the groupings of savings? If you could break that into five or six bigger parts, that would be useful.

[1750]

Hon. P. Bell: We just did some quick math, so I hope the member doesn't hold us to this, because we're just working quickly to get the numbers.

Corporate travel, we think, is down in the neighbourhood of $3 million to $3.1 million. That's on a base of about $7 million, so not quite 50 percent. The total core corporate overhead, I did mention, was $7.74 million or $7.75 million. There's about $4 million in reduced corporate overhead and infrastructure. That's a combination of all the things that I talked about like BlackBerrys, cell phones, computers, vehicles — all those sorts of things.

That's a rough breakout. If the member would like a more detailed summation of that, we could certainly get it for him, but that would likely take us a bit of time. By a bit of time, I don't mean tonight. I mean a week or so.

N. Macdonald: So that $7.75 million is accounted for there. Now, it's a reduction of about $66.5 million, and the minister has talked about a reduction in staffing of 21, I think the number was. Just how much of the remaining money of the $66.5 million would be part of that staff reduction?

Hon. P. Bell: Just, again, rough and dirty numbers. Typically, we allow about $100,000 fully loaded costs for an employee. That's with all benefits in, so if it was 21 staff, you'd be at something just over $2 million.

I should mention that those individuals are going through all of the various bumping processes, so that would not be annualized for this year. We're already well over a third of the way into the fiscal year at this point, so that would only recover for the tail-end portion of the year — probably something under a million dollars.

[1755]

N. Macdonald: Just a bit of a sidebar. One of the things that was interesting is that many of the ministries made changes to the February budget. It seems that this ministry was still fairly high in the…. Not high, but it changed significantly, unlike other budgets from February to what's been put in front of us now.

Is there any particular reason why those changes didn't happen more rapidly? What's the reason for that? Is there any reason, or is it just what happened?

Hon. P. Bell: I'm not sure that I'm going to fully answer the member's question, but I'll give it a shot. The fact that the ministry budget doesn't perhaps look like it's changed as much — or actually it's gone up — is a reflection of the fire budget and the realization as we got into the latter part of August that it was going to be an exceptionally bad fire year. In some ways that masks the reductions, I believe, in some of the other areas. I'm not sure that that adequately answers the member's question, but if it doesn't, I'm happy to get more detail.

N. Macdonald: No, I understand the fire part. In other ministries you had more significant cuts, because earlier in the year you had the Premier directing cuts to items that were administrative or to areas that were seen as discretionary. Other budgets in February even showed up as having greater cuts. I mean, if there's not a reason for it, that's fine. It's not a huge point.

So to understand the remainder of the $66.5 million, you indicated a number of reasons. What are some of the other cuts? We have discretionary funding that the minister describes as being approximately $7.5 million, and we have cuts to 21 staff that the minister describes as in the ballpark of $1 million. Where are some of the other cuts coming?
[ Page 773 ]

Hon. P. Bell: Probably the biggest single reduction was the Forest Innovation account. That account was reduced by about a third, or $32½ million. I'll break that down a bit further for the member opposite.

The land base account, which is kind of incremental activities that are going on, on the land base in partnership with industry, was reduced by roughly $16.2 million, $16.198 million. That is a reduction of about a third. The forest science program we reduced by $6.12 million. Again, we protected the forest science initiatives that were focused on tree improvement programs, that sort of thing, but some of the other areas we reduced.

The Forest Innovation Investment account was down by $800,000; the land use planning dollars, $1.25 million. Administration within the Forest Innovation account was reduced by $2 million. Contingencies were down by $500,000, and some of the FIA-funded activities — the northwest strategy grassland ecosystem, some of those sorts of things — were down by $5.4 million. Each of those represents roughly a third reduction in that particular account line. That total accounts for about $32½ million.

The forests for tomorrow program was originally just over $50 million. That was reduced by $11 million. Again, we are comfortable that we can meet the objectives of the forests for tomorrow program.

One of the decisions that we made in that particular area was to bring back the administration of the forests for tomorrow program in-house. It was previously done by PricewaterhouseCoopers, and we made a conscious decision with the belief that we would be able to find savings by doing it internally, and we had staff that would be capable of taking on that role. So those are some examples. Those two items together add up to about $43 million, $44 million.

N. Macdonald: So coming back to the staffing, then, of the 21 personnel, is it resource management, pricing, selling compliance? In which part of the ministry staff are those cuts taking place?

[1800]

Hon. P. Bell: I want to point out right up front that none of these staff have yet been laid off. They've all received notices, but we are working through the process of trying to find locations to place those staff in other vacancies as vacancies come up. We have vacancies, of course, come up every month in the ministry, when you have that many staff. So we're working our best to make sure that all of these staff have a landing place.

The breakdown in terms of representative bodies. Of the 21, there were two excluded staff, three PEA staff and 16 BCGEU staff all together. Most of those fall in one of three categories. They're resource technicians, C and E technicians or scalers — particularly scalers, of course, with reduced volume.

I do have a breakdown for the member, if the member wants, by community. It ranges across the province. In the vast majority of circumstances, it's one individual in any given office. The two exceptions to that: there were two individuals in the Vanderhoof office and two individuals in the Williams Lake office. There were two in Nanaimo, I guess. So the majority of them were single individuals in a particular office.

N. Macdonald: That's information that you could provide without any difficulties. Okay, the minister can indicate if that's available.

The cost of the MSP premiums — how much will that be for the ministry? What's the cost of MSP?

Hon. P. Bell: As I understand it, the MSP increase is funded from the central benefits vote, which rests with the Ministry of Finance.

N. Macdonald: Just so I understand, the MSP — you don't have that number. You don't have the figure. Obviously, it has implications for the budget. As well, the 2 percent rise in… I think it's part of at least the BCGEU and perhaps all members. Is that something that you have a figure for? How much is that going to have? You have 3,000-odd people within the ministry, so what's a figure for that? How much is that going to cost?

[1805]

Hon. P. Bell: We were trying to figure out how we might be able to get at that number for the member opposite. I don't think we have all of the data that we need here to actually calculate what the incremental 2 percent wage addition would be year over year.

I can assure the member opposite that it is built into the budget, that it's part of the budget plan, was part of the budget plan prior to or when we released the original budget in 2009-2010.

If the member's question is specific to how many dollars are associated with the 2 percent wage increase that was…. I believe it was 2 percent; I don't want the member to quote me on that. I could be wrong about the exact number, and I know it's different depending on the skill sets. If the member opposite wanted to know what the wage increase was, what that amounted to across the ministry, I'm sure we can get that. But we would have to go far more in-depth.

I may be misunderstanding the question. If I am, I'd certainly welcome further direction on that from the member.

N. Macdonald: So the increases are budgeted into the budget, and presumably MSP is as well — right? Any additional costs are built in there.
[ Page 774 ]

Will there need to be any reduction in any programs to manage that, or is it something that will not require any reduction in programs?

Hon. P. Bell: The budget does incorporate all of the incremental costs associated with wage increases and with MSP, and there would be no further reductions in any programming as a result of that.

N. Macdonald: Just as an aside, we're going to get into some of the PricewaterhouseCoopers things later. But have there been audits done in any of the ministry's agencies or programs? Have there been any audits? As we go and look at some of these other things, it might be useful to know that ahead of time. Have there been any audits not only with the ministry but with ministry agencies or any of the programs?

[1810]

Hon. P. Bell: I'm not sure how the member would define the term "audit." Just in a very quick discussion with executive here, the things that we could come up with…. Other than the audit on the Jordan River lands, we can't think of any audits that the Auditor General has done that would pertain to the ministry.

This is, again, just our corporate memory working very quickly here, so we don't have this defined. However, the Merit Commissioner, we understand, has done a couple of audits on hiring practices. That information would be available. Of course, the Merit Commissioner is an independent officer of the Legislature.

The Forest Practices Board does audits on a regular basis of forest practices across the province. I'm not sure whether the member would consider that to be an audit or not. The Forest Practices Board, I'm thinking, in an average year maybe does ten or at least half a dozen audits, if not more.

That is the very quick summation of our corporate memory here of what the member might consider to be an audit.

N. Macdonald: What we'll do is we'll come back and give you a clear definition of the audits — I know that we have to watch the time — and try to give you a clear scope of what we would be looking for.

The other piece of information, just before we go, is around the B.C. Timber Sales. How much did they either make or lose — I know that there was a transfer of money in — after all costs are taken into account?

Hon. P. Bell: Noting the time, I'll try and just get a little more clarity on the question that's being asked first. I'll answer the question, and then I'll make the motion.

I'll just ask the member opposite: is he referring to 2008-09 numbers or the projected budget for '09-10 numbers?

N. Macdonald: Well, 2008-09.

Hon. P. Bell: In the 2008-09 year the gross revenue for B.C. Timber Sales was $145.9 million. The expenses were $168.8 million, for a loss of $22.9 million. I will add, and I'm sure that the member will understand, that there are investments that are made in any given year that will be accrued to another year for the benefit of that year.

With that, Mr. Chair, I move that the committee rise and report resolution and completion of the Ministry of Citizens' Services and progress on the Ministry of Forests and Range and ask leave to sit again.

Motion approved.

The committee rose at 6:14 p.m.

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