2011 Legislative Session: Fourth 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, October 19, 2011


Afternoon Sitting


Volume 26, Number 1

[ Page 8207 ]

WEDNESDAY, OCTOBER 19, 2011


The House met at 1:34 p.m.


[Mr. Speaker in the chair.]


Routine Business


Prayers.


Statements
(Standing Order 25B)


B.C. JOBS PLAN


J. Les: I'm pleased to speak to the House today about Canada Starts Here: The B.C. Jobs Plan, which was unveiled by our Premier. Creating and defending jobs is at the forefront of our government's agenda.


Whether you live in Campbell River, Fort St. John, Princeton, Kitimat or any other region, the B.C. jobs plan touches all areas of our great province. By focusing on B.C.'s natural advantages, we will place ourselves at the forefront of job creation throughout Canada now and into the future.


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Our government is focused on what British Columbia does best. The jobs plan consists of three pillars: enabling job creation, getting goods to market and opening expanding markets. Through these pillars we can explore our strengths in forestry, mining, natural gas, agrifood, green technology, tourism, ports, marine and aerospace, and finally international education.


These sectors will bring new dollars into B.C.'s economy, and already we are seeing great progress. Last week the National Energy Board approved an export licence for Kitimat LNG. Just today Seaspan was awarded an $8 billion shipbuilding contract. This contract will create thousands of jobs for British Columbians.


There's an insatiable demand for our natural wealth in the world's fast-growing economies. China, India, South Korea and Japan are three days closer to B.C.'s ports than any other ports on North America's Pacific coast. That is one of the many reasons that we are looking to Asia as a key trading partner in our new jobs strategy.


By investing in these sectors we are positioning British Columbia as a key economic leader in Confederation. This is British Columbia's time. It's time for the rest of the country to see that Canada starts here.


SPORT-FISHING REGULATION
IN SKEENA RIVER AREA


D. Donaldson: Where I live, for a lot of people, the rivers and angling are the equivalent of our recreation centre. Fishing is an economic driver too, especially the fly-fishing, catch-and-release steelhead fishery. Right now it's in full swing, and people are coming from all over the world to fish in our waters.


The sport fishery sector alone — including components like guiding, bed and breakfasts, restaurants, hotels, lodges and retail spending — accounts for $9 million a year on the Skeena River system. If managed properly, it's sustainable, and that's why proposed projects like Enbridge's tar sands oil pipeline and Royal Dutch Shell's coal bed methane drilling plans in the Sacred Headwaters bring far more risks than benefits for local people economically, culturally and socially and ecologically.


Management of anglers has created problems too. The quality waters strategy, an effort to develop new angling regulations on our rivers, could have been a community-building exercise but instead was a divisive process pitting guides against other local small business owners with the result that no real solutions to issues like tourism sector sustainability or illegal guiding were achieved.


To top it all off, local quality waters strategy working group members that I talked to weren't even given the courtesy of a heads-up when the new regulations were announced in a government news release last week.


Despite all of this, on a beautiful day on the Kispiox River with the late autumn light filtering through the golden-coloured aspen leaves with a crisp breeze flowing down from fresh snow-covered peaks, with your fly line laying out flat on the surface of clean, free-flowing water and with the prospect of landing a steelhead and releasing a steelhead, it's easy to forget about all life's problems, no matter if you live locally or come from away. Let's hope that such a sought-after opportunity remains available and viable for well into the future.


PREDATOR RIDGE GOLF RESORT
IN VERNON


E. Foster: I'd like to talk about immaculately groomed fairways, natural lakes and streams, rugged pine-covered ridges, golden wheatgrass meadows — in short, Mr. Speaker, golf.


Specifically, I'd like to mention the Predator Ridge golf course and resort in Vernon. Predator Ridge opened in 1991, and in 20 years it's come a long way, both as one of Canada's best-known courses and home to ten residential neighbourhoods, which have created many local jobs in both construction and maintenance.


Golf and golf tourism is a significant economic driver in B.C. Over 14 million rounds of golf are played in B.C. every year, and just this year close to 70,000 people visited Predator Ridge. The hard work of Wesbild Holdings, Predator's parent company, has paid off as Predator Ridge has hosted both the 2000 and 2008 Skins Games. It is almost impossible in Vernon — in fact, anywhere in the valley — to attend a charity fundraiser that Predator has not contributed to.


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In August Predator hosted a major fundraiser for the Vernon Jubilee Hospital Tower of Care campaign, with 280 golfers enjoying a great day on the links, all donated by the folks at Predator. The generosity of the players and the contributions of Predator helped the VJH Tower of Care campaign to reach their $7 billion goal.


When the Vernon Multiplex was looking for a major sponsor, Wesbild once again stepped up, and now the six-time national champion Vernon Vipers are proud to call Wesbild Centre their home.


So if you're looking for a round of golf at the best resort course in Canada, or perhaps you'd like to live on one of the fairways or maybe just get away for a few days, give Predator a call. Brad, Brent and Ingrid and their crew will be glad to help you.


To Mr. Hassan Khosrowshahi, the founder and chairman of Wesbild: thank you for your faith in our community and the investment.


FOSTER FAMILY MONTH


C. Trevena: It takes a special kind of person to care for someone else's baby, their child, their adolescent, and yet our child welfare system is founded on these people — the foster parents who give love and support to the children who come into their care.


This is Foster Family Month, our opportunity to recognize, thank and encourage foster parents. I notice a number of members from both sides of the House are or have been foster parents and so know firsthand the joys and the challenges of fostering — the 24-7 commitment, the hope and sometimes the sadness. Foster parents, of course, become attached to the kids, but they know that fostering in its very nature is not permanent. Fostering takes many forms from short-term assistance for vulnerable young moms to the longer-term care of children and adolescents, and it's a system which is evolving and can continue to evolve.


We can learn from best practices in Canada and other countries to see what works, how we can best support the child and make sure that she and her family are looked after. Supporting children and supporting families, keeping kids with their own families, is the ideal, but it's not always an option. So a special kind of person is needed to step in to help, and that person is a foster parent. For the more than 8,000 children in care, just under 6,000 are in foster care with more than 3,000 families. But there's always a need for more foster families, for more people who feel they can make a difference to that child.


These are the people who really are supporting the vulnerable every day, and while they receive some support in training, more is always needed. Foster parents need assistance, and they need guidance. We place some of our most vulnerable youngsters with their families. Those families deserve support and recompense. We should celebrate their hard work, but we also should acknowledge that we can do much more.


ALS RESEARCH


L. Reid: A team of researchers from the University of British Columbia's Brain Research Centre and the Vancouver Coastal Health Research Institute have found a key link between prions and the neurodegenerative disease ALS, also known as Lou Gehrig's disease. ALS is a progressive neuromuscular disease in which nerve cells die, resulting in paralysis and death. Approximately 3,000 Canadians live with this fatal disease, for which there's no effective treatment. Every day two or three Canadians die of ALS.


The discovery is significant, as it opens the door to novel approaches to the treatment of ALS. The findings provide a molecular explanation for the progressive spread of ALS through the nervous system and highlight the central role of the propagation of misfolded proteins in the pathogenesis of neurodegenerative disease, including ALS, Alzheimer's and Parkinson's.


The work has identified a specific molecular target which, when manipulated, halts the conversion of a particular protein to a misfolded, disease-causing form. A protein's failure to adopt the correct structure is what threatens the health of cells. This discovery is the first step towards the development of targeted treatments that may stop the progression of ALS.


I'd like to dedicate my remarks this afternoon to Greg Fraser, a wonderful Richmond teacher who lost his battle with ALS, and to Dr. Neil Cashman and his colleagues in British Columbia and Alberta for the contributions they have made. They have found a key piece to help guide the research community to solutions, Mr. Speaker, and we are indeed grateful.


YOUTH SERVICES IN
MAPLE RIDGE–PITT MEADOWS AREA


M. Sather: Tony Cotroneo, a recreation manager for children, youth and neighbourhood services, has been deeply involved in Maple Ridge and Pitt Meadows Youth Services since 1994. He's extremely proud of the services we have available to youth in our communities, and rightfully so.


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Tony and the 50 staff members that make up the youth services team are focused on diverting youth from negative actions by engaging them in social and recreational activities. By building trusting relationships with staff and fellow youth, individuals are guided through the positive continuum of being non-participants to participants, to becoming volunteers, to being leaders, with the eventual goal that each youth leaves the program with the skills to be successfully employed.


This summer the youth adventure camp was attended by a record number of kids, who were given the opportunity to fish, canoe, mountain bike, dragon boat, African
[ Page 8209 ]
drum, ocean kayak, practise photography and much more. The annual hike to Lake Lovely Water, bar none the most popular trip, was once again a huge success as 25 kids spent five days bonding in a cabin on a glacier, relearning how to reconnect with each other without technology or even electricity.


There are two youth centres for ages 13 to 18 open until 9:30 p.m. every day of the week: the Pitt Meadows Youth Centre and the Greg Moore Youth Centre in Maple Ridge. The Greg Moore Youth Centre is one of a kind, the first municipally funded youth centre that was built specifically with youth in mind. The centre received the B.C. Recreation and Parks Association Facility Excellence Award for the first time this year, the first time it was applied for. Its ten-year anniversary is October 13, last week, and it is still state of the art.


Congratulations to Tony Cotroneo, the Greg Moore and Pitt Meadows Youth Centres and everyone involved in youth services in Maple Ridge and Pitt Meadows.


Mr. Speaker: I understand a few members weren't quite ready for introductions.


Introductions by Members


Hon. T. Lake: It's my great pleasure to introduce some members of the Tk'emlupsemc, or Kamloops Indian band First Nation, that are in the precinct, over the next few days meeting with various ministers. I'm very happy to say that Tk'emlups has been a great partner with the city of Kamloops and the entire region.


As mayor, I was very proud of our collaborative relationship. Tk'emlups is a great economic driver in our region with a large industrial and commercial enterprise and one of the best housing developments in British Columbia at Sun Rivers. So it's a pleasure for me to introduce my friends and colleagues from the Tk'emlupsemc First Nation: Chief Shane Gottfriedson; Coun. Evelyn Camille; Coun. George Casimir; Coun. Jeanette Jules; Coun. Dolan Paul; Coun. Fred Seymour; and their chief executive officer, John O'Fee.


Please help me welcome them.


Hon. M. MacDiarmid: I'm delighted to welcome some very distinguished guests today from the Alzheimer Society of British Columbia. With us today we have Barbara Lindsay, the senior manager of advocacy and public policy; Jean Blake, the CEO of the Alzheimer Society of B.C.; and Jennifer Teryn, who's the Minds in Motion coordinator for Victoria.


The Alzheimer Society of B.C. happens to be located — their B.C. office — in beautiful Vancouver-Fairview, but what they do is right around the province. They provide a message of hope and inspiration for people, as well as invaluable information at a very difficult time. So I would like to ask everyone to warmly welcome them.


Hon. M. de Jong: Good to see Chief Gottfriedson. The only time I play left wing is when he's playing centre.


Good to see you, Chief.


Sarah Toda is the newest member of the staff in my office. She is in the gallery for the first time watching proceedings, and I hope the House will make her feel welcome.


R. Hawes: In the gallery today, joining Barb Lindsay and Jean Blake and Jenn Teryn, are Victoria residents Vlad and Mavis Holub. Vlad was in charge of the IT section in this building for the Ministry of Transportation for more than a decade.


Vlad, a few years ago, was diagnosed with Alzheimer's. Mavis is his caretaker and his wife — his carekeeper. He is a member of the Minds in Motion here in Victoria and really an outstanding spokesman for people with Alzheimer's, who even today continue in some parts of British Columbia to feel and be stigmatized.


I think it's up to us all to understand what that disease is and to work as hard as we can to make sure that Alzheimer's people in our communities are looked after the way they should be. So could we all thank Vlad and his wife.


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L. Reid: We are joined by David Hoff from the Cement Association of Canada; Darren Brown, Jasper van de Wetering from Lehigh Cement; and Michael LeMonds from Lafarge Cement. I'd ask the House to please make them welcome.


D. Hayer: I have a special guest, Matt Pitcairn. He was my legislative assistant before, and now he's working as a regional director for us in Fraser Valley. Would the House please make him very welcome. 


Mr. Speaker: Last chance, Member. Any other introductions?


Oral Questions


COMMENTS BY LIBERAL MLAs
ON COMMUNITY LIVING SERVICES


A. Dix: People are getting ready today, hon. Speaker.


My question is to the Premier. It's with respect to the crisis at Community Living B.C. The Premier will know that on Monday her parliamentary secretary for forestry alleged that the government essentially had been misleading people over the past year about whether individuals were being forced to move from group homes without their consent.


On Tuesday the member for Abbotsford South described the government's record with respect to adults with developmental disabilities as "an obvious failure." Who did he hold accountable to that? His Liberal colleagues in cabinet and presumably the Premier.

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Does the Premier agree with her caucus members that her government has in fact further marginalized adults with developmental disabilities?


Hon. C. Clark: Let me just acknowledge this off the top, because one member already spoke to it. The fact that British Columbia has now been awarded this very significant shipbuilding contract is going to be one of the things that is going to help us make a difference for people in British Columbia who depend on government services, including those with a developmental disability. As we create jobs across the province, we'll see revenue to government grow and it'll make it a lot easier for us to do the things that we need to do as a wealthy, generous society.


With respect to CLBC, there are big issues at the organization. There's absolutely no question about that. There has been a review underway that has been looking inside and in depth at what's going on at CLBC. We are very much looking forward to the results of that audit internally. We need to get to the bottom of what's going on at CLBC, because CLBC provides service for a lot of British Columbians quite well, but there are many others who it is not serving at nearly the level that they deserve.


Mr. Speaker: The Leader of the Opposition has a supplemental.


A. Dix: The question is very precise. The member for Abbotsford-Mission said on Monday that successive ministers, including ministers in the Premier's cabinet, had misinformed the public. So is the Premier acknowledging today…?


No, he was very specific, and I'd be delighted, in fact, to read the quote, because the Premier is looking confused.


In this House this is what the member, her parliamentary secretary, said: "We heard the previous minister…say that no one gets moved without it being their choice, without them agreeing. But we know that that hasn't been what has been happening."


Does the minister agree with the member for Abbotsford-Mission, in fact, that successive ministers have been misinforming us about whether people have been moved without their consent?


Hon. C. Clark: I do wish that the member, when he offers what he says is a direct quote and then backs it up, can actually back it up with a direct quote. I'm happy to answer this question as well.


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As we are working to try and build the economy across British Columbia — and make sure that we are building revenue for government so that we can relieve some of the pressure that absolutely exists on all areas of government, on every budget of government — we need to make sure, though, that people aren't falling through the cracks. And we need to make sure that's true at CLBC too. That's why I initiated the review, and that's why that audit has been working inside the organization for the last several weeks — because we need to find out what's going on inside that organization so that we can improve it.


CLBC has to do a better job. We are a wealthy society, and we can do far better than we have for the people who are depending on government to look after them.


Mr. Speaker: The Leader of the Opposition has a further supplemental.


A. Dix: Well, the Liberal Party has been in government for ten years. The member for Abbotsford South put it succinctly. He wasn't confused as to who was to blame. He described the record at CLBC as an obvious failure. That's what he said. That's a direct quote — "an obvious failure." He said he knew who was responsible. He said it was the Liberal cabinet. He said that last night. The Premier can check the record — an obvious failure. That's their record.


She may not want to answer questions in this House. She may not want to answer those questions in this House about CLBC. She may not want to answer questions in this House about CLBC.


Interjections.


Mr. Speaker: Members.


A. Dix: This isn't like the Liberal caucus, where she can say: "Shut up, or I'll call the election." This isn't like that. In this House she needs to answer these questions, and the question is precise. Does she agree with the member for Abbotsford South that the performance of her government at CLBC, the performance of her minister at CLBC, is an obvious failure?


Hon. C. Clark: So the member has quotes from the House that he makes up, and then he has quotes from the caucus meeting that he makes up — very interesting. I see a pattern of behaviour here on the other side, one that extends back, as we all know, quite a few years to when he was in the Premier's office.


I'll say this. I don't agree with the member for Abbotsford South. I don't agree with him on that at all. I think CLBC is an organization that has done a lot of good work, but it is an organization that isn't doing enough to fix the problems that it has. That's why we've come in as a government and brought in an audit team that is going to get to the bottom of what's happening there, because we live in a society where we can afford to do well by the people who are least able.


We live in a society where we can look after people who weren't born with all those advantages that some of
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us were. We will make sure we're doing that. That's the purpose of the review at CLBC. They have a new CEO. They have a new direction, and we are going to fix it.


Interjections.


Mr. Speaker: Members.


Just before we continue, I want to remind members on both sides of the House to be careful of their parliamentary language, how they use it, the context they use it. This is question period, where we're supposed to have a little bit of civility. The questions should be brief, and the answers should be brief.


COMMUNITY LIVING SERVICES REVIEW


N. Simons: Sounds like a pre-reprimand. I'll do my best, but when faced with the facts, it's difficult not to be passionate and emotional.


We had one minister say: "We don't force moves." We had another one that said: "We'd never force moves." Then we had a member, a parliamentary secretary, admit: "We've been forcing moves." We've had the CEO of Community Living B.C. fired. We have the acting CEO now saying: "We lost our way on ten to 15 files."


Well, I want to just say that yesterday one good thing happened. CLBC did one good thing. John Gaffney, the fellow we saw on television, finally got a group home placement. He's out of the hospital, for 5½ months, after not having to be in that hospital. That's a good thing.


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The first thing he said when he walked into the house…. John arrived at the group home after 5½ months in the hospital, and he walked in the door. There were balloons and a cake, and the first word he said — and he doesn't speak much — was "family."


This is a question about how we treat our most vulnerable families in the province. We've seen service redesign that has left a lot of people out in the cold.


Now, my question to the minister: is it true that the redesign that Community Living has been undergoing for the last six months to a year is really about just the bottom line and not about families?


Hon. S. Cadieux: Well, first, let me say that I am very pleased that the interim CEO was speaking with folks today about the fact that CLBC needs to refocus on families. I'm really pleased to see that, because it's exactly what I've asked them to do. I have asked them to do that because we all care about people with disabilities in this province. That is exactly why we are making sure we get to the bottom of what the issues are — so that we can address them in a very effective and responsible manner.


Mr. Speaker: It wasn't a pre-reprimand.


The member has a supplemental.


N. Simons: My question is again to the Premier or to the minister. We have a situation where the acting CEO has said that there have been a handful of problems. We have 2,800 people on a wait-list for services that will meet their families' needs. That's not a handful.


We've seen denial and obfuscation in the last six months, and we need real answers. That's why we're asking for an external review — so that we don't continue to get this misleading information about Community Living wait-lists.


Will the minister or the Premier show that they're concerned about this in a real sense and call an external review into Community Living B.C.?


Hon. S. Cadieux: Well, I think that yesterday I answered again and again what we're doing. We're doing an internal review — a very thorough, rigorous review and audit to find out where there are issues, what we can do about them and how we need to address them.


Also, something I'd like to mention is that I have asked my ministry to set up a client support team that will be made up of representatives from my ministry and the Ministry of Children and Families and other ministries as necessary to deal with some of the issues that have come to light, because I want to make sure that those families feel they are getting the service they need from CLBC.


TREATMENT OF SENIORS
IN CARE FACILITIES AND
CARE FACILITY REGISTRY


K. Conroy: For years we have been hearing about stories of abuse of seniors in B.C. care homes. In 2009 Ombudsperson Kim Carter issued a series of recommendations which would serve to open up information about the state of care in these homes. But in the media this week the former parliamentary secretary responsible for seniors admitted that she didn't know the extent of the problem. "I don't have an answer for you," she said. "It's hard for us to know if we are having success reducing the problems if we don't have the data."


How is it possible for a government to be so out of touch that they don't know what's going on in seniors facilities?


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Hon. M. de Jong: Mr. Speaker, there's no question that as our society continues to age, the phenomenon of seniors abuse, elders abuse, is one that we need to be concerned about. That's why we welcomed the Ombudsperson's report, part 1 of the report, and why the government took specific steps in response to that report in terms of centralizing the availability of information and providing better communication links. Admittedly, it's challenging when you're dealing with folks that are sometimes very
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elderly to create a patients and residents bill of rights that people can rely upon and to embed that in legislation.


I can tell the member that the Ombudsperson has communicated to me that she is in the midst of finalizing part 2 of her report and anticipates providing that to this House early in the new year. The government will, as we did with part 1 of the report, take whatever recommendations she advances in that report very seriously.


Mr. Speaker: The member has a supplemental.


K. Conroy: In 2008 the former Minister of Health promised to follow Ontario's lead and set up a one-stop website to allow British Columbians access to all information about seniors facilities. Yet it took a freedom-of-information request to get the troubling information out.


In the Interior Health region — 692 physical incidents towards patients. In Vancouver Coastal region — 26 attempted suicides. In the Northern Health region — 60 incidents of aggressive or unusual behaviour. In the Fraser Health region — over 12,000 total incidents, including unexpected deaths, disease outbreaks, sexual abuse. And the list goes on. This is information British Columbians should have quick access to.


Will the minister commit today to implement a central registry that ensures seniors and their families have real access to all the information about seniors facilities in British Columbia?


Hon. M. de Jong: Actually, not only are we endeavouring to ensure that there are more direct lines of communication between patients and the elderly and officials that can assist when there are difficulties; we also want British Columbians as a whole to have better access — more open and direct access — to the information and the data that is collected, recognizing that we need, of course, to protect the privacy of individuals concerned.


Every day across the province people report to work and provide extraordinary services in the care of the elderly, in a myriad of different circumstances, but as the member points out, there are times when something goes wrong — physical abuse, financial abuse. We see examples of seniors who are taken advantage of. We are working with the Ombudsperson, we are working with the health authorities, and we'll continue to do so to ensure that our most vulnerable citizens — our pioneers, our veterans — are protected from that kind of abuse.


TREATMENT OF SENIORS
IN CARE FACILITIES AND
HEALTH CARE WORKER LAYOFFS


M. Farnworth: British Columbians do deserve to know what's taking place in our seniors care facilities. There is one group of people who do know, and that's the health care workers in those facilities. They work with those people and those seniors day in, day out, and they see the problems. The problem is the fact that they're not able to focus as much as they used to because of the policies of this government.


Now, 150 workers in Malaspina Lodge in Nanaimo are going to be receiving layoff notices. That means these care workers and the seniors…. That care is going to be disrupted, as people are concerned because they're going to be laid off. Some of them may be hired back; some of them won't be hired back. But the bottom line is this. Those workers find it harder to do their job, and those seniors aren't getting the proper care that they should be getting, and their lives are disrupted.


Why the policies of this government around contracting out? How is that good for health care for seniors in British Columbia?


Hon. M. de Jong: It's disappointing to me that the member would try to turn an issue that relates to the safety and respect we should all be showing for seniors into somehow a collective bargaining issue. That is disappointing.


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Each day across this province thousands of care aides…. In fact, we had five of them in the House yesterday, care aides who have direct contact on a daily basis with the seniors to whom they are administering care. The vast, vast majority of those individuals provide that care and that service in a loving, caring way. Yet there are issues, as the member's colleague points out.


What we want to ensure…. It's why, by the way, we made a priority of ensuring that people who have contact with seniors are required to have criminal records checks. We did that because we believe that seniors deserve to have that guarantee — or, to whatever extent we can, provide that certainty — that they are being dealt with by appropriate people.


We will continue to administer to the needs of seniors. They are, in many cases, vulnerable. We will ensure that they can grow old in a dignified and safe environment.


Mr. Speaker: The member has a supplemental.


M. Farnworth: What is disappointing is that even after the Supreme Court slapped this government down over Bill 29, we still have a government that disrespects health care workers and seniors in this province.


The people who deliver health care in our seniors care facilities deserve better than to be given layoff notices, then told, "We may hire you back," and then, as too often happens, given layoff notices again — disrupting their lives, their ability to deliver the services to the seniors that they care about and this government purports to care about, and disrupting the lives of seniors, who deserve better in their later years.

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Again, the question to the minister is this. How is the policy of this government of contracting out and laying off workers improving health care for seniors in British Columbia?


Hon. M. de Jong: Well, it is those policies, those very policies that the member seeks to denigrate in this debate, that are responsible for a dramatic increase, a 25 percent increase, in the availability of residential care beds for seniors in British Columbia. It is those very policies that he seeks to ridicule in this chamber today that are responsible for a 51 percent increase in the spending that we provide to seniors in need of care in British Columbia.


Make no mistake about it. The government — this government, this ministry — has worked with the Ombudsperson and has implemented the recommendations that she has introduced. We will continue to work with her, and we will continue to ensure that there is safe, dignified housing available for seniors in British Columbia, because that's what we were elected to do.


TEST RESULTS FOR DISEASE
IN WILD SALMON


M. Sather: The infectious salmon anemia virus has been discovered in wild salmon in Rivers Inlet. This is a potentially devastating disease that hasn't been reported before in the North Pacific. The Chilean farming industry was devastated by this same virus — $2 billion in losses, production cut by half and 26,000 people laid off.


We have a lot more to be concerned about here in British Columbia as well. We have our world-renowned sport-fishing industry, our commercial industry and our First Nations food fishery.


Dr. James Winton, who leads the fish health research group at the Western Fisheries Research Center in Seattle, called this outbreak a "disease emergency." My question to the Minister of Agriculture is: does he agree with the assessment of Dr. Winton?


Hon. D. McRae: Well, we've got another example of spinning media headlines and fearmongering from the opposition.


The reality is this. The lab results were sent to P.E.I. They were not following protocol when, instead of actually contacting CFIA, they went directly to SFU, which in turn went to the media.


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When CFIA then, in turn, said, "We'd like to do our test samples," and said, "We'd like to test the fish," well, unfortunately, I'm advised that the tested-positive results at the P.E.I. lab were destroyed and, therefore, not available to CFIA.


Now, what I want to make sure that we have very clear in this chamber today for all members here and all members of the public is that ISA poses no risk to human health. I don't want people leaving this chamber for one second thinking that ISA is a problem to human health. 


Mr. Speaker: The member has a supplemental. 


Interjections.


Mr. Speaker: Members.


Just take your seat for a second, Member.


Members.


Continue, Member.


M. Sather: Well, in my time in this House that has got to be one of the worst answers I have ever heard. The minister is really making a mistake in going this route.


Those fish were tested by the World Organisation for Animal Health. Now, if the minister wants to quibble with the worldwide body that's responsible for fish health, go ahead; fill your boots. But you're making a big mistake, and you're making a big mistake about not taking what's happening to our fish, our wild fish, our salmon farm fish in this province…. You're not taking it seriously, Minister, and you ought to be ashamed and apologize right now. 


Interjections.


Mr. Speaker: Members.


Hon. D. McRae: By all means, we take this incredibly seriously and don't for one second think that the health of wild salmon is not hugely important to the government of British Columbia and the people of British Columbia.


What's really important, though, is that when an allegation or a test is done, we make sure that the protocols are done to make sure that CFIA can ensure that these results were fair, accurate and, basically, making sure that they react accordingly.


One study needs to be backed up with another. CFIA is working diligently to make sure those results are being done, using the sample that they do have available, not the two fish that have gone missing. We want to make sure that the CFIA will move forward and act accordingly once the information is done and made available. 


PUBLIC RELEASE OF REPORT
BY AGRICULTURAL LAND COMMISSION


L. Popham: It's just not information on fish health that this minister is not taking seriously. This minister and the two before him have kept a report by the widely respected chair of the Agricultural Land Commission under wraps for almost a full year. As a consequence, the commission has been unable to act on recommendations from the Auditor General.


My question is to the Minister of Agriculture. Why are you keeping this report from the public? 

[ Page 8214 ]

Hon. D. McRae: I'd also like to congratulate my critic opposite, since this is the first question that I've had from the critic for Agriculture opposite in the first eight months.


Congratulations.


It's also the first question that the opposition has raised….


Interjections.


Mr. Speaker: Members. Members.


Continue, Minister. 


Hon. D. McRae: I'd also like to point out that it's the first question about the ALC we've had in this chamber since 2008.


But aside from that, I want to take the opportunity to thank Richard Bullock. He is the chair of the ALC. He toured the province last fall. He received input from over 60 organizations and hundreds of individuals from every region of the province.


I want to make sure that the people in this province and in this chamber again know that the member opposite….


Interjections.


Hon. D. McRae: Oh, I'm sorry. It threw me for a loop because I haven't been up very much, because I haven't got many questions.


This government is committed to protecting farmland and maintaining the independence of the ALC.


[1420]

Mr. Speaker: The member has a supplemental.


Interjections.


Mr. Speaker: Members.


Just take your seat for a second, Member.


Interjections.


Mr. Speaker: Members.


Continue, Member.


L. Popham: Over the past year the Liberals have taken no action on five of the nine recommendations from the Auditor General on ways to improve the struggling Agricultural Land Commission. During that time acres and acres of agricultural land have been covered in construction fill, rendering it unfit for farming, an issue which the Auditor General addressed in his report and an issue that this minister is now responsible for.


Again to the Minister of Agriculture: when exactly are you going to release that report?


Hon. D. McRae: I find it a little comical that the opposition tries to criticize this government's handling of the ALC. That is the party, opposite, that removed 20,000 hectares of land from the ALR when they were in power, which is in direct contrast to the 39,000 hectares of land that have actually been put into the ALR.


You know, I don't want the facts to get scary, because we have a real lack of policy coming from the opposition. So I'm going take my chance to ask. To the critic opposite: does she support the now leader of the NDP in his decision back in the '90s to override the ALC, something this government doesn't do, and allow a golf course to be built on prime ag land near the city of Kamloops?


Is this a foreshadowing of things to come if the NDP were ever to form government in British Columbia? That's what I want to know.


[End of question period.]


Interjections.


Mr. Speaker: Members.


Again, as I reminded everybody the other day, the use of BlackBerrys during question period by all members is not allowed.


Hon. R. Coleman: Surely that wasn't the member that was the last person in British Columbia to get a cell phone in the history of B.C. He's not actually our technical genius.


Orders of the Day


Hon. R. Coleman: The orders of the day this afternoon will be continued second reading on Bill 3, intituled Freedom of Information and Protection of Privacy Amendment Act. Should that get completed, we will then move to committee stage of Bill 11, the Greater Vancouver Transit Enhancement Act. Should that get completed, we would move to second reading on Bill 6.


Mr. Speaker: Could members get off to their other duties as quickly as possible. There's a member that has the floor and wants to speak.


Second Reading of Bills


Bill 3 — Freedom of Information and
Protection of Privacy
Amendment Act, 2011


(continued)


C. Trevena: I rise today to speak on Bill 3, the Freedom of Information and Protection of Privacy Amendment Act.


[1425]

One of the tenets of the Liberal government over the last ten years has been one of open government, which
[ Page 8215 ]
is something that we should believe in, if we believe in a good, healthy democracy — having a government that is going to be open and transparent, discuss issues and obviously, protect privacy where and when necessary, but really to ensure that there is enough discussion and awareness of what is happening. It's very healthy for our democracy and should help people to get engaged in that democracy.


[L. Reid in the chair.]


Sadly, I think that people have been very disillusioned by what has transpired in the open government — in the fact that more often than not government has become more and more secretive, behind closed doors and really not giving the ability for people to find out what is happening, to get that sense.


There was talk, initially, about open cabinet meetings, about sharing of information, and so on. Unfortunately, we've really not seen that. If we have the open government and we have the access to information and people can get information very readily, they are much more likely to get engaged because they're educated in what's happening in their own province. That really is very, very important for engagement in the process, and the more people that we get engaged in the process, I think, the better it is for all of us.


We always worry about the fact that we have too few people here who are younger, the young generation. We look around, and we sort of see the turnout dropping at elections. We see the engagement getting more and more reduced. I think that's partly because people have been wanting to see how it works, wanting to get more involved in just what the workings are and see what the openness is, and have been disillusioned by that fact.


One of the aspects of this is the whole concept of freedom of information, which this bill does intend to amend. Freedom of information and the ability to have laws which allow access to information are extremely important for individual citizens, for legislators, for opposition members and also for the media.


I heard one of the members opposite talk about the almost frivolous nature of why the media would want to have freedom-of-information requests. If they're going to make a request, you know, the government will now just automatically put that request, put that material on the government website. Well, the very fact that the government suddenly would feel that it's okay to release information when it hasn't been okay to release information in the past…. It's great that it's going to be released. But there is a real….


It's of great use for the media to use freedom of information to be able to find out stories, to build up stories. There is a competitive nature in the media, and the media want to make sure, the individual journalists want to make sure, that they are getting their exclusive, that they are getting their stories. Freedom of information is one way of doing that. The information still gets out, and it gets out often in a much better way than it would do when the request comes and three days later it's posted.


I've also got to say that the tradition of freedom of information in B.C. is really very, very troubling. We have laws that allow people access to information, concepts of freedom of information — that if it's in the public interest, it should be released. But we have so many examples of when this has not been literally free.


For those who tune in or those watching in the gallery, many people are often not aware that you actually have to pay for freedom-of-information requests. The reason that government says that you have to pay is that there is an administrative cost. Yes, there is an administrative cost, obviously, in releasing freedom of information, but these fees are sometimes, to be honest, quite outrageous.


If I might quote. The Sierra Legal Defence Fund appealed a fee estimate of $24,000 for a freedom-of-information request. Now, $24,000 to access some information that is there…. Yes, there's obviously administrative work, but that information is going to be available. So $24,000 they were asked.


[1430]

When they appealed it, the ministry that they were applying to increased the estimate for freedom of information to $173,000. I mean, $173,000 to find information. We laugh, and we talk about how much lawyers charge, and we can't afford to go to lawyers because of the $500-an-hour estimate. But $173,000 to get some information is quite ludicrous in what should be — in what we have been led to believe is — open government, sharing of information.


The Ministry of Labour fought against the release of employment standards enforcement records. Now, employment standards enforcement records — again, this is the sort of information that people would like to see. They'd like to see how much the employment standards are being enforced. It's useful information to have.


This was a request that was filed in 2006. There are time limits on getting freedom-of-information requests processed, and the ministry initially gave itself a 30-working-day extension. The person who was requesting the information was told that it would cost $4,200 — his fee — and then there would be additional costs incurred by the ministry that he would have to pay. So when the researcher, who said he couldn't afford it, applied for a fee waiver because this was in the public interest, this was refused.


Again, I question how we can have any concept of freedom of information when we are looking at it in this way, when we are looking at it as being blocked.


The Suzuki Foundation. In question period we had a brief discussion about aquaculture. The Suzuki Foundation was requesting information on sea lice from 2006. The government exempted the information, saying
[ Page 8216 ]
it was protecting the privacy interests of a third party, obviously the aquaculture industry. There have often been concerns by the aquaculture industry about the release of information.


The commissioner ruled that the government must release the information. The government then appealed. It lost, and so it resorted to other sections of the act and were again ordered to release the information. By this stage even the industry, the aquaculture industry — the government was concerned about its proprietary rights being infringed — said the information should be released, but still the government refused.


So there are real needs to improve access to information, freedom of information, which are not being addressed in this bill. As I say, the freedom of information is very important for individuals, for legislatures and for the media.


We have very valid reasons why we're asking for this information, because we're questioning how decisions are made. We're questioning how laws are being formulated, how policy is being structured. These are all the sorts of things that we are trying to find through freedom-of-information requests — either ourselves or the media. We really want to ensure that we get access to that.


This bill, unfortunately, doesn't really deal with ensuring that we get better access to freedom of information. The other issue that it's looking at, in the freedom-of-information and protection-of-privacy concept and act that it is, is the protection of privacy. So we've always got this balance of giving information, protecting people's privacy and protecting, as just discussed, companies' privacy — whether it is information that the company doesn't want to release or information that shouldn't be released because it is very sensitive.


But there is also the obligation to protect personal privacy. This bill goes a long way, I believe and this side of the House believes, in really creating big concerns of breaching people's personal privacy, of asking too much from citizens of B.C., asking too much personal information from people for government use and for consolidating for government use.


[1435]

If I might quote. There has been some criticism of this bill from the Freedom of Information and Privacy Association and the B.C. Civil Liberties Association, and I'd just like to quote from Micheal Vonn from the B.C. Civil Liberties Association. She said: "The government has decided on a policy to massively increase the personal information collected, stored and shared with others. This law pushes us all further down the treacherous path. Yet projects like this, which centralize huge amounts of data, have been discredited the world over. Such personal information banks violate privacy rights, cost billions and often end up a waste of money."


These are a few areas that I think many people are not aware of. We are talking here not just about asking for your date of birth, your address or your SIN number, but consolidating a huge amount of information about you that can be used then…. We have talked about the cards, which are going to be the identity cards — the driver's licence, the CareCards, everything like that — consolidating electronically.


We are talking about the issue of databases for people. I heard the Minister of Children and Family Development, when she was talking about this bill, talk about the big, new computer system that is being used by both her ministry and the Ministry of Social Development. I'm sure other ministries would love to get involved with it. I am not sure whether the Ministry of Health is getting involved or not, but definitely the Ministry of Social Development and the Ministry of Children and Family Development.


The ICM system is already a very costly system, and it is going to be consolidating a huge amount of information often about some of our most vulnerable people. People who turn to both the Ministry of Social Development and the Ministry of Children and Family Development are often people who are very, very vulnerable, who are coming to the government for specific needs and would be looking for real support and would not really challenge the fact that this information is being gathered because they are hoping they are going to be getting support.


We have had many conversations, both in this chamber — many debates in this chamber — and conversations in committees, about how the government works in silos, how we don't have the different ministries talking to one another. One of the justifications for this computer model is that it is going to break down silos. It's going to make it easier to cross-reference for individuals. But again I have to flag that there is a huge concern about the amount of personal information and the concentration of individuals' information that will be going into this.


Rather than breaking down silos, it will be helping to contribute to what the B.C. Civil Liberties Association has described as personal information banks, which then opens up the way for people's privacy to be violated. The argument is it makes data sharing easier across public bodies. But the concern is that we really don't have any confidence, I've got to say, on this side of the House in the government's record of ensuring that information is going to be protected.


We have seen previous times where there has been personal information that has been leaked, has been stolen. The government only found out about it when the RCMP informed them. When this bill was being drawn up and when the committee, which was looking at getting some information for this bill, was travelling around, the acting Privacy Commissioner, Mr. Paul Fraser, was responding to it. He gave some very, very thoughtful comments about this and about the impact on people's privacy.


He cited that in the past three years there were 248 breach reports in the public and private sector. There
[ Page 8217 ]
was the most recent investigation, which was the theft of personal information from 1,400 of B.C.'s most vulnerable citizens. That was information from the Ministry of Social Development — 14,000 files, 14,000 people. That is astounding. But if we are consolidating information, creating these banks, it is likely that we are going to have that possibility. It is much greater.


[1440]

It is incumbent on the government to ensure that people's information is kept as private as possible. By creating such data banks, there is a huge risk that this isn't going to happen.


Mr. Fraser continued: "We concluded that the results of the investigation illustrated that the government…." This is the misplacement or loss of the information on 1,400 citizens that went missing. "It took seven months for the government to notify the individuals affected by the breach. When notification did occur, the letters were sent to the wrong addresses" — despite having the information banks, they still sent the information to the wrong addresses — "resulting in further inappropriate disclosure of personal information." I think this is quite terrifying for anyone who is trusting the government with their information.


Mr. Fraser continues. "We concluded that the results of the investigation illustrated that the government had not yet established what we call a culture of privacy. That isn't…a buzzword. It's a real expression of concern" And it should become a goal of this government. "The government must demonstrate that privacy is distinct from, and as important as, other security concerns."


I think this is one of the real concerns we have on this side of the House. When we're talking about information banks, data banks, a lot of information about people's personal information, that culture of privacy isn't there. Like I was talking earlier, there isn't really a culture of freedom of information, nor is there a culture of protection of privacy. I mean, in both essential parts of what this bill should be about and what this amendment act should be about, we are being let down.


The current Privacy Commissioner. While the members on the opposite side of the House have said that she has given a ringing endorsement to the legislation, I think we should really be much more cautious about what she's been saying. She says that there is still much work to be done, that this isn't the be-all and end-all, and that we have a lot of work to be done. I think this is something that really is of great concern.


There is a lot in this bill that is missing. There are many areas where we could talk about things that could be here, which would better protect people's privacy and would ensure we have better freedom of information. I'd just like to pick up on one, and this is one that was brought to my attention by a constituent of mine. She lives on the north end of the Island, 500 kilometres from Victoria. But she felt this was important enough to come down to Victoria to present to the committee that was examining the Freedom of Information and Protection of Privacy Act.


She came to Victoria, and her issue was staff training. She wanted to see more training for front-line professionals on the privacy aspect of the act. As she says, once privacy is breached, you cannot take it back. There is no provision in the act for there to be any resolution after a breach. This was a constituent of mine from Port Alice.


This is something, again, that Mr. Fraser raised in his submission to the committee — that we have to ensure there is training. He goes on to say: "If the act is unintelligible, then we've got to do something about that. I'm saying that the act is complicated. There's no question about that. But it's the training, the learning and the guidance with respect to the act that…has been missing."


This is a huge opportunity to look at that and see how we can ensure that there is going to be training of those people who are going to be using that and build something into the bill. That will ensure that when we talk about freedom of information, people know what freedom of information really is. That is the ability to have access to information that isn't lots of pages redacted, as is said, which come back to individuals or media outlets at huge cost where much of it is blanked out on the freedom-of-information side — and likewise on the privacy side, to understand just what it is to ensure that somebody's privacy is protected and what to do about a breach of privacy.


This has huge concerns. I think my constituent felt strongly enough about it that she came all the way down to Victoria, 500 kilometres, to present to the committee yet will be very disappointed when she finds out that there is nothing there.


[1445]

There are ways this could have been done. There are ways we could have put training into the bill. But again, it is something which has been neglected.


I would like to sum up by saying that the concept of freedom of information and protection of privacy is something that I wholeheartedly support. I think that anybody who believes in a healthy civil society would support, who believes in a healthy democracy would support that we have to have the access to information and ensure that we have freedom of information and can share that information. We have to ensure that people's privacy is protected in whatever way that a government can still do its job but not put people's personal information at risk of leaking out, of becoming public, of getting into the wrong hands.


We live in a very wide society. These are things we really do have to address. It's very clear that this bill was designed to…. One of its aspects was to recognize the fact that we now live in a very wide society, which wasn't the situation when the initial Freedom of Information and Protection of Privacy Act was drawn up.


There is still a huge need to ensure that people's privacy is protected, that we have that built into the system.
[ Page 8218 ]
When we are looking at big new designs which people are boasting are going to be the be-all and end-all, there are so many fail-safes there that nobody has any fear of a breach of privacy.


I don't think people can have that sense of confidence, both with this government and with past experience. Nor do I think that people can feel very confident, when they apply for freedom of information, that they are going to get the information they feel they need, which they need to use to best show what is happening in this province and for the public interest.


I will close with this remark. There is a huge opportunity. There is a huge need and a huge responsibility by a government to ensure that people have their privacy protected, information available in the best interests of our society, and I think this bill fails that.


K. Corrigan: I, as well, am rising to speak on Bill 3, the Freedom of Information and Protection of Privacy Amendment Act, 2011. I am going to speak more about the changes that I wished had been in this bill but that were not made, as opposed to those that were made.


Supreme Court of Canada Justice Gérard La Forest said in Dagg v. Canada: "The overarching purpose of access-to-information legislation is to facilitate democracy." It does so in two related ways. It helps to ensure, first, that "citizens have the information required to participate meaningfully in the democratic process" and, secondly, that "politicians and bureaucrats remain accountable to the citizenry."


If our access to information is lacking, then there is a democratic deficit, and politicians are not accountable. I would say that at the moment there are real flaws in both the legislation and the government processes.


That being said, I want to thank the Office of the Information and Privacy Commissioner for all the work that the commissioner and the staff do, helping individuals and organizations in accessing information and taking on an increasing array of responsibilities without, I would submit, the requisite funding needed to do their job in the fullest way.


I didn't sit on the special committee reviewing the Freedom of Information and Protection of Privacy Act. Many members of that committee from both sides of the House have spoken ably on the present bill, given their depth of understanding and the materials and submissions that came before several committees over the years and other information that has come to the committee. I thank the committee for their work and for their recommendations now and in the past.


[1450]

However, although I did not sit on the committee itself, I've had significant experience seeking information from government through filing freedom-of-information requests and navigating the appeals process. I have to say that it was for me a fairly consistently frustrating experience when dealing with the B.C. government and its agencies.


I'm not the only one. Journalists, environmental groups, advocates, other governments and individuals have all commented on how they have found dealing with the government and accessing information to be a difficult experience with barriers along the way. I think it has been difficult for organizations.


Certainly, it was for me on two fronts. First, because of court decisions and commission rulings or orders interpreting various provisions of the act that have had the effect of significantly narrowing access to information. In addition and perhaps more importantly, because of what has appeared to be the all too frequent approach of government agencies to seek ways to use the provisions to prevent access to information rather than acting in the spirit of section 6 of the act, which is supposed to, I think, set the tone and framework for access to information.


Section 6 sets out the duty of government to assist applicants. It says: "The head of a public body must make every reasonable effort to assist applicants and to respond without delay to each applicant openly, accurately and completely." That should set the spirit of the operation of the act. That should be the guiding light for government.


I like the simplicity with which the B.C. Library Association described this intent of the act. In its 2010 submission to the Committee to Review the Freedom of Information and Protection of Privacy Act, they said: "Most important to our brief is that the original intention of the act, to provide access to government information, without financial or bureaucratic impediment, be maintained." I've got to say: don't libraries just have a clean, simple way with words? I think that describes it very well.


But the experience of many people seeking information has unfortunately been just the opposite. There have been significant impediments, both financial, with fee estimates that I've heard compared to SLAPP suits, fee estimates sometimes in the thousands of dollars…. I heard my colleague just talking about one fee estimate that was over $100,000. Estimates have had the double-chilling effect of often being impossible to pay or, even if they were paid, often had delayed the process by months or even years.


Of course, time delays of months or years have caused applicants to become cynical and angry at the process. Referring back to my opening remarks, citizens not believing that they are being treated fairly and not achieving timely access to information adds to the democratic deficit.


Those impediments were extreme enough that the University of Victoria environmental law clinic, representing a consortium of environmental organizations — including the Sierra Legal Defence Fund, Western Canada Wilderness Committee and the Raincoast Conservation Society — alleges that three ministries engaged in a systemwide pattern of routine delays, excessive and unreasonable fees, and frequent and unjustified denials of fee waivers in response to freedom-of-information requests.

[ Page 8219 ]

In that case the Office of the Information and Privacy Commissioner focused its investigation on the Ministry of Environment. It concluded that the reliability and completeness of the data supplied by the ministry were open to questions and, secondly, that there appeared to be a significant problem with the processing of requests made by the eight complainants.


The investigation revealed that the ministry was taking an average of 74 business days. If you add onto that the actual number of days, I think it would be up around 95 or 100 or slightly less. Anyway, 74 business days to process requests for information from the group, as opposed to a cross-government average for the same time period of 45 business days, and this under an act that requires public bodies to respond to access requests within 30 business days.


[1455]

In that case, the office did manage to mediate a plan to resolve the access issues, but I raise this case to demonstrate the frustration felt by many applicants and the belief, at times, that there are systemic and sometimes intentional delays and denials of requests. This bill, Bill 3, would have been an opportunity to address the flaws. I'm deeply disappointed that that has not happened.


I want to also mention that with the limited funding of the office — and through no fault of the staff there, who do heroic work to try to work within the budget they have — further delays are built into the system because of the significant backlog of complaints.


I do remember filing complaints and appeals with the office and having them delayed, with no response, for months, or a cursory response saying: "You're in the queue, but we can't actually deal with you for months and months."


When you add that to the original delays of getting responses back, and then if you have to make a complaint, you can add on months and months more, it can be literally years before you get access — if you do end up getting access — to information that you have requested.


You know, some information is time-sensitive in this political world. I certainly experienced times when I would eventually receive information, but it would be long past the time when it would have any value to me.


My own experiences with the act reflected that of many others. In fact, one government consultant who is responsible for managing FOI requests for one provincial agency once told me, in a moment of surprising candour, that her job was to provide strategic advice on the operations of the act, not, as section 6 of the act says, to make every reasonable effort to assist applicants and to respond openly, accurately, completely and without delay — no, to provide strategic advice.


My experience with this and some other government departments and agencies was that requests were responded to often on the last possible day and that most requests were followed up with a decision by the government to take the extra 30 working days under the act. That can be done without providing reasons for the delay, and that happened regularly.


In my experience with government, often even these extended deadlines were simply missed, which would mean that if you took 30 days and another 30 days and you added on the fact that it was business days, it was often 2½ months or more before we got a response.


Often there were responses that no documents existed, at times when I knew they did. Or if documents were received, they were so heavily redacted or crossed out, blacked out, as to be meaningless. Some government departments were certainly better than others and responsive, but the experience was generally frustrating and negative.


In one group of requests that I was involved in, a request was made to one government agency in April. It was transferred to a ministry, the Ministry of Transportation, in July of that year, who then transferred it back to the original agency. In September we wrote to both of the public bodies and asked who was responsible for the file. No response was received to the letter. No response was ever made to the request.


There was another example when two identical documents were requested and received from both the federal government and the provincial government. The federal document was complete, while the same document received from the provincial government had extensive information blacked out.


I spoke earlier about the chilling effect of barriers to access. The reality is that particularly for the average person, it takes a lot of time and effort and a fair amount of expertise to follow up on requests. I believe, with regard to at least some requests and some ministries, that people just give up. Apparently, my negative experience and my colleagues' negative experiences and that of UVic environmental law clinic were not unusual.


[1500]

Recently, in the last few months, British Columbia scored last on a national FOI survey conducted by Newspapers Canada. The National Freedom of Information Audit is the largest and most comprehensive survey of its kind in Canada and the only annual live test of the freedom-of-information system in this country. Governments were tested for both the speed and the completeness of disclosure.


B.C. was the slowest to respond of all of the provinces and territories. This is partially explained by the fact that unlike most provinces, B.C. allows 30 business days to respond to access requests, instead of 30 calendar days. But that in itself slows the access to information, and it's a choice that has been made by government. The results of that audit also showed that some governments are far more transparent than others, especially on how money is spent.


The audit also noted that there are always some examples that stand out in an exercise such as this, both good examples and not-so-good examples.

[ Page 8220 ]

One of the not-so-good cases earned British Columbia something called a brick, which is not a good thing. The government of B.C. got it for the way it handled four requests for communications budgets and staffing numbers, first by effectively giving itself 2½ extra weeks to respond by asking the auditor to withdraw and redirect her request, then urging staff to expedite the restarted request.


Perhaps most telling, the numbers show that in both provinces — both British Columbia and Ontario, in this case — responses to requests peak around the legislated deadline. B.C. also has another peak at 60 working days, so responses at 60 working days, reflecting the fact that, in B.C., officials extended the deadline to complete requests in more than a quarter of all the cases. That's where I'm talking about the 30-day deadline, and they're taking an extension, which they are allowed to do, for another 30 days. There was another peak at the end of the second 60 days.


The tendency in B.C. is for more and more requests to be answered as the deadline approaches. So overall, I am very disappointed that in Bill 3 there are no changes to either the time limits or other processes to address the various concerns that I have raised.


Now, I do know that the office has been attempting to hold the government's feet to the fire, and there has been some smaller improvement, I believe, in response times over the past year or two. But as the 2011 survey demonstrates, and the continuing complaints about systemic problems, it is unfortunate that the government, in its haste, made no changes — they could have been made, and they didn't — to address these serious flaws in the provisions and in the operation of the act.


I'd like to turn for just a few minutes to comment on some specific clauses of the act that were not amended, clauses that I believe have dramatically undermined the effectiveness of the act. In the Freedom of Information and Protection of Privacy Act there are exceptions to the requirement for disclosure of information. Many of those who made submissions to the committee, both this time and last time, requested amendments to some of those provisions that contain exceptions.


The first one that I want to talk about is section 12, which is called cabinet confidences. If a piece of information falls under this exemption, then the government is not required to — in fact, must not — release the information. It says: 


"The head of a public body must refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council or any of its committees" — so that would be cabinet — "including any advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Executive Council or any of its committees."


I am concerned — and others are — that section 12 is being used increasingly as an excuse for blanket withholding of information of government. As with section 13 that I'll talk about in a minute, this is now not only being used for specific cabinet documents but even for any information that might have gone into the creation of those documents.


[1505]

I referenced earlier my disappointment that some orders and court rulings had narrowed the amount of information covered by the act. Certainly, the order of the Office of the Information Commissioner, FO9-27, contributes to the narrowing of that information. I find it disappointing, and I think it is an unfortunate interpretation of the act.


In that case two records that were not part of the submission that went to cabinet but were described as key inputs in the development of the business case for the project were exempted. What that meant was that even though they were not part of the documents that went to treasury, the argument that someone might draw inferences about Treasury Board deliberations if they saw those documents was accepted. So with that decision and some others, in effect section 12 of the act, I believe, has been significantly undermined.


I bring your attention to Colin Gabelmann, who talked about what the original intent of section 12 was. He was in cabinet, introduced the freedom-of-information legislation. Much later, in 2007, he made the following points in a speech, and he said:


"Section 12, the 'cabinet confidences exception,' protects cabinet deliberations by prohibiting the disclosure of any advice or recommendations that would reveal the substance of those deliberations. We sought to ensure that cabinet could conduct its business freely and that public servants would not feel constrained in advising cabinet.


"But we intended that exception to be limited. We designed the act to ensure that the information considered by cabinet would become public once a decision was announced or implemented. My words to the House…."


This is Mr. Gabelmann speaking. He was referring back to his words in the House in 1992 in respect to section 12.


"'This bill limits the government's right to cabinet secrecy by providing that factual material presented to cabinet or developed by ministries will be accessible once the decision has been implemented.'"


So the current interpretation of section 12 goes far beyond this point. In fact, I won't get into it, but I think it's out of touch with court decisions in other parts of Canada.


I had hoped that this bill, Bill 3, would have been an opportunity to narrow the exception for cabinet and to widen the access to information again, and unfortunately, that has not been done.


In addition, the following recommendation was made by the committee in 2004 — that section 12 should be amended by adding a subsection that allows cabinet to waive the protection of that otherwise mandatory provision, and also that it should be amended so that the time limit in those provisions went to ten years from 15 years. That, again, has not been addressed, and it's unfortunate because the recommendations have been there in the past.

[ Page 8221 ]

I also want to mention, quickly, section 13. This is a section of the act that exempts a government body from providing information that is policy advice or recommendations. My concerns again are similar.


Section 13 says: "The head of a public body may refuse to disclose to an applicant information that would reveal advice or recommendations developed by or for a public body or a minister."


In its 2004 report the committee said:


"Based on what we heard, the committee thinks there is a compelling case, as well as an urgent need, for amending section 13(1) in order to restore the public's legal right of access to any factual information. If left unchallenged, we believe the court decision has a potential to deny British Columbians access to a significant portion of records, in the custody of public bodies, and, hence, diminish accountability.


[1510]

"Furthermore, as described earlier, we have had the opportunity to hear firsthand accounts of the devastating impact the denial of access to factual information about themselves is having on some families in British Columbia.


"Regardless of whether these cases are directly related to the court decision, as a matter of principle, we believe that individuals have the legal right to access and correct personal factual information in third-party files, except in the most unusual circumstances.


"For these reasons, we urge the government to take speedy action to clarify the exception relating to policy advice or recommendations."


Unfortunately, the recommendations that came out of that were not acted upon by government. They still have not been acted upon by government. Again, the impact is that the application of section 13 has been narrowed and the access to information has been narrowed at the same time.


The last section that I will quickly just mention is section 25, which talks about information that must be disclosed in the public interest. Section 25 essentially provides that even if information might not be made available and might be under an exemption, like the two that I mentioned, it must be disclosed if there is a compelling public reason why it should be disclosed.


Unfortunately, I have seen personally, and others have seen as well, that the decisions that have been made around section 25 have significantly narrowed again the amount of information that people can access, because the arguments about what is in the public interest have been rejected and the definition has been narrowed.


There are other specific sections and other specific information that I would love to share, but I can see I'm getting close to the end of my time. I guess I would just say in summary that it is important to democracy that access-to-information legislation…. The purpose is to facilitate democracy. I saw this as an opportunity for government, in addition to the privacy provisions, to increase the access to information and thus to facilitate democracy. Unfortunately, the government has not chosen to go that route. With that, I will take my seat.


B. Ralston: I rise to make a few brief remarks upon the bill that's before the House. I think it's important to look at the broader context. Indeed, the Office of the Privacy Commissioner, in her presentation — before, I suppose, Mr. Fraser at the time, the acting commissioner — did present to the special committee and talk about just how much changes in technology have necessitated an updating in the act.


That is particularly in relation to data sharing and data linking, as it is called, which enables data collected for one purpose to be linked with data collected for another purpose and reconfigured and used in ways that were, perhaps, unanticipated or unknown to the initial providers of the original data that began the process.


Information technology, as we're all aware, has dramatically accelerated and makes some of these amendments necessary. I think with that, in the era of WikiLeaks, we know from Mr. Julian Assange's notoriety around the globe that what were previously considered impenetrable and supremely well held and secure data systems are open, on some occasions, to being raided or leaked or intruded into and the data leaked out into the public that was certainly never intended to be leaked out into the public.


The question about the balance between privacy and the public's right to know is very much a legitimate one. I am following on a very eloquent speech by the member for Burnaby–Deer Lake who, citing some important Supreme Court of Canada precedents, has set out the context, I think, quite well for the Legislature in its consideration of this legislation.


[1515]

But given that that is one of the primary purposes here, the Information and Privacy Commissioner has commented on the legislation and said that, I suppose in summary or at a high level, she's satisfied with the way in which those two concerns will be balanced.


She did go on in a subsequent interview to say that — and this has been quoted in other speeches — the devil is in the details, in the sense that there's a sense about the legislation that it has been rushed, that it's being pushed through the House when all the implications of some of these amendments are not entirely clear to the drafters of the amendments, nor entirely to the government side and perhaps even to the minister.


Now, perhaps the minister will be able to disabuse me of that notion when she closes debate in an hour, which I expect will arrive shortly. But nonetheless, given the impact of those changes in technology, the implications of data sharing and data linking, it's not clear to me, and to many who are looking at this legislation, that those precautions are in place.


In fact, the Information and Privacy Commissioner, in her letter to the minister, said that she has a commitment from the Ministry of Health to discuss rules for data linking that would apply, as well as the possibility of the new stand-alone health information legislation.

[ Page 8222 ]

So I'm not sure. The reference to stand-alone health information legislation is a bit unclear. But if that is the case, then perhaps there'd be a separate occasion in which the Legislature could properly consider what I think many people would regard as very intimate records — the records of their own medical treatment and medications that they may be obliged to take, based on the prescription of their physician.


There's an essential core of personal biographical detail that I think most people would say you should, if you so choose, be able to keep private, no matter what circumstances you are obliged to divulge it in. Obviously, if you're receiving medical treatment, of necessity, you have to divulge to your physician much of your medical history in order that an accurate diagnosis and, therefore, accurate treatment might be made.


There is a concern — particularly, I think, with health legislation — about how that might be applied. Now, the former Minister of Health, the member for Vancouver-Langara, in the debate did talk about the advantages of the database. Particularly, this applies to PharmaCare here in British Columbia. He complimented the visionary government of the 1990s who set up the PharmaCare PharmaNet, which he said — and I'm quoting him more or less accurately, I hope — is one of the most complete records of medical prescriptions across a population in the world.


Given the completeness of that data, it's obviously invaluable, potentially, for medical research and, also, for those pharmaceutical companies that might care to examine over a number of years the impact across a population of the treatment effects of a certain drug. Obviously, that has certain potential monetary value and research value.


The recommendations that were suggested by the parliamentary committee that reviewed the legislation and reported back in May of last year said that they recommended that the act be amended to require that the data-sharing projects for the purpose of research must be subject to ethics review by an arm's-length stewardship committee — so to set the ethical context for the medical research.


Then, secondly, in recommendation 25: "Add a requirement in the act that privacy impact assessments must be completed at the conceptual, design and implementation phases of an electronic record project. This requirement should apply to health authorities as well as government ministries."


So there is some reference, again a little bit unclear and ambiguous in my reading, from the Privacy Commissioner about the way in which she will work or intends to work with the Ministry of Health in order to look at the implications of health records and, I suppose, if it's necessary, have separate legislation on health information.


[1520]

But I think there is a real challenge. One does not want to dismiss the possibilities for legitimate research of the effects of new drugs upon a population. Indeed, many people look to that sector for cures that up until now don't exist. So, certainly, we could advance science if that data was to be provided, but on the other hand, we'll have to look at the context.


We are dealing with a government that saw fit to shut down the Therapeutics Initiative, which was a world-renowned and highly praised initiative which assessed, sometimes contrary to the interest of the pharmaceutical companies, the potential impact of drugs and in some cases decided properly, for medical reasons, not to recommend that they be added to the formulary and therefore be available for dispensing in the province.


In some cases they have been dramatically proved right. There was litigation, and medicines or pharmaceutical products were withdrawn in the States that were pronounced by the Therapeutics Initiative as not being appropriate here. Therefore, we didn't have those same kinds of difficulties.


I would be, and I think most people would be, a bit wary. Certainly, I would want to advance medical research, but on the other hand, if this data was simply to be used or sold, as an enticement or as part of a package, to pharmaceutical companies to locate research here, then I think that would be something the public would be concerned about.


So I don't want to suggest that that would be the only purpose. There is an element of legitimate medical research that I would favour and, I'm sure, most of the public would favour. But in the context in which this government operates, in particular in view of the history of the Therapeutics Initiative, that might be one that may not have a demonstrated public benefit.


Now, I've spoken a bit about those concerns, the broad concerns, and I know the minister has spoken about advancing the use of databases to create identification mechanisms, such as an enhanced driver's licence, integrated perhaps with the Medical Services Plan membership or card.


I think most people would, subject to the usual and expected controls on personal privacy, see that as a legitimate goal of public administration in the sense that if we can deliver services more effectively, if we can weed out fraud and people who aren't qualified or are not citizens of the province, of the country, and aren't entitled under some exemption to get medical service, that would probably be a good thing for the public treasury.


But I think people would want to make sure that that was done with the appropriate amount of controls over their legitimate privacy rights.


On the other hand, there's the other aspect of the act that my colleague from Burnaby–Deer Lake and other colleagues who have intervened in this debate have spoken about, I think, quite eloquently. The other side is access to information largely for the purpose of finding out as a citizen what the government is doing in any
[ Page 8223 ]
particular area. The culture of this government around disclosure….


I see the Minister of Transportation here. I know that he chaired the committee that reviewed the legislation back in 2004, and many of those recommendations are similar to the ones that were made here and were not adopted. But the ones with the public requesting information…. Most encounters are the statutory delays in disclosure.


It's a case of foot-dragging to the deadline, and none of those amendments that were suggested by the committee in this report have been adopted.


[1525]

For example, there's a provision, I think in section 11, that's called file transfer. It's suspected, although perhaps not entirely fairly, that that's simply an add-on to delay a request — so the 30 business days, the automatic extension and then the transfer request. The public body, rather than receiving the data in a central body and then dispensing it out internally, claims that it's transferring the request from one body to another.


It was stated by the review committee in 2010 that the proposal was from the Freedom of Information and Privacy Association to eliminate the 20-day transfer period. The committee didn't accept that but settled on a recommendation to amend the time for file transfers to ten business days. That hasn't been accepted. All the foot-dragging that was formerly permitted still has been legislatively untouched by these amendments.


There are some anecdotes that have been related. I have been provided with a few. I think one of the, perhaps, most egregious ones was the IBM contract which came about — a huge contract for the provision of government services by an outside supplier, in this case IBM. The Freedom of Information and Privacy Association made a request under the act for the contract in December 2004. This was part of four long-term deals negotiated with private firms and worth in the billions of dollars.


These are not trivial matters. These are important, legitimate questions about the expenditure of public tax money.


This was the sequence that flowed. The company complained about potential release. The government refused to release the records. Ultimately, after negotiation, letters, all the deadlines being exhausted, in July 2008 the commissioner demanded the documents be handed over.


The government appealed to the courts. In December 2009 the British Columbia Supreme Court ordered the release of the contract but not in its entirety. A heavily censored version of the contract was released on January 11, 2010. That's over six years to get access. Certainly, there may well be some business proprietary material in those contracts, but surely, that's a decision to separate that out or winnow that out of a request that could be done in something short of six years.


The culture of this government…. Obviously, this request had a political dimension — obviously — because it was a provision by a private supplier of what were previously government services. There were those in the public who were skeptical of that change in delivery of services and anxious to see whether the contract was a fair one, whether it provided value for money, in order to make a comparison and maybe even, dare I say it, draw some political conclusions from that.


Clearly, the government, sensing that, stalled it successfully, unfortunately, for over six years. That's despite all of the professions of commitment to the act and high-minded speaking that we'll doubtlessly hear from the minister. This is the nitty-gritty and the reality of what goes on in many cases. Those people who legitimately seek to get access to information are frustrated, and political debate is ended.


So it is a review of the act that takes place. It's in the act that requires the review, but it is unfortunate that for those provisions, the timeline provisions and the fee provisions, none of the recommendations have been followed.


I want to close, briefly, just by talking a little bit about the request for fees. Certainly, there is, I suppose, a point to say that someone legitimately requesting information from the government might be required to offset some of the cost of that by way of a fee.


[1530]

The suspicion and, I think, the legitimate reality that most people have discerned, is that the fee setting is used as a specific and very harsh deterrent to disclosure. One example I've been provided with is that the Sierra Legal Defence Fund appealed a fee estimate of $24,000. In response the ministry increased its fee estimate to $173,000. So the fee structure that's embodied in the act sets fees at a very high level.


[D. Horne in the chair.]


Surely where there is a commissioner who oversees the act…. One can understand that there perhaps is a concern that frivolous or vexatious or something less than purposeful applications might benefit from some form of small deterrent in the form of fees. But legitimate requests for information that might embarrass the government shouldn't be subject to escalating fees that act as a real deterrent in order to drag the process out and to ultimately grind people down until they go away and give up. That's not the culture of freedom of information that the government claims it's fostering, but too often that is the reality of what the government has done.


In closing, then, in my view what is here before the House accomplishes some of the steps that are set out in the report. Given the haste in which this legislation has been thrown together and given the profound, I would say, reservations of the commissioner — not so much in her letter but in her public interviews — the detail in which this legislation is rolled out will be the real test of
[ Page ]
whether the government is once again returning to its culture of barricading information or, rather, observing the spirit of the act and releasing it to those legitimate requests that the public has and is entitled to. We shall see what comes of this.


Doubtlessly, in the committee stage, assuming that we get to a committee stage…. All too often in this Legislature we never get to committee stage. The government simply stands up at the end of a very brief session and sends all important legislation like this through on closure. There are legitimate issues that will be debated, one hopes, in the committee stage, and when we get to that, I'm sure that members on my side of the House will have questions of the minister and her staff.


With that, I conclude my remarks.


G. Coons: It gives me pleasure and honour to be able to rise in the House and speak to this important piece of legislation. Again, Bill 3 before us essentially changes consent provisions in the act so that the government can now ask citizens to consent to have their information collected, used and disclosed where the government thinks it will result in improved service delivery.


I believe the effect of this bill is to weaken personal privacy protection in the freedom of information and protection of privacy.


This government has is a real history and, as mentioned, a real culture of lack of transparency, lack of accountability. Basically, they want to weaken personal protection by facilitating data-sharing and data-linking among public bodies. They want to develop a provincial identity management system that could lead to citizens having on-line government identification and to allow communication consultations between the government and citizens via the Internet and social media.


Then again, when we talk about the key concepts, the heart and soul of a democratic society — open governments, privacy protection, freedom of information — it's very difficult to disagree with that. The current Information and Privacy Commissioner of this province, Elizabeth Denham, has great concern with this and mentions: "The devil is in the details." I think that's a key component of the legislation before us today that's missing. We don't know the details.


[1535]

She says: "Some of these changes need more prescriptive rules. There is much work yet to be done." Yet this legislation is before us without much consultation, without taking into account the public or the committees that have been working on this for a long time. As the Minister of Transportation knows, we've been dealing with a lack of accountability in transportation in Ferries where it was not open to freedom of information for about seven years, and we're seeing the outcome of that.


We're seeing issues out there that are just flying into the fan and hitting the government in the face. The key one, again, obviously, is the salary and benefits and secondary pensions to David Hahn and the other two vice-presidents. Because of no accountability, no transparency and lack of freedom of information, we're seeing that.


The minister, in her comments when she opened up, quoted: "With these amendments government continues the tradition of enhancing the act's privacy and access provisions to ensure that it not only remains the strongest legislation of its kind in Canada…." When we look at how much of a disconnect that is with reality…. There are so many advocates out there, stakeholders, who are looking at this and watching it transform before us, and they're disappointed.


Back in September 2010 there was a workshop. It was called Transparency Turnaround: When Public Information Goes Private and Personal Information Goes Public. That's the key concern with the legislation before us, and the concern of advocates and the public.


In this workshop, which was in Vancouver on September 29, 2010, it said:


"It's a critical time for FOI and privacy rights in B.C., with some game-changing recommendations for changes to the Freedom of Information and Protection of Privacy Act on the table.


"A special committee of the Legislature has just completed the third review of the FOI Act and delivered its final report to the Legislature last May.


"The public wants privacy protection and more access to government information. Government officials want less scrutiny and a lot more licence to collect and share our personal information. Both are demanding major reforms of the act."


They're questioning: "Are big changes ahead for freedom of information and privacy in B.C.?" That's where we are right now. The concerns are there.


This government, ever since they came into power, wanted less scrutiny, and they did it through legislation. The example of B.C. Ferries — exempt from freedom of information, no accountability, no transparency. We don't know what's been going on for the last seven years, and finally we're going to be getting into the third component of legislation under the Coastal Ferry Act, and all because….


Interjection.


G. Coons: Yes. As was mentioned, all because of the sneakery of this government and the lack of accountability and transparency.


In May of 2009 there was a report by the B.C. Freedom of Information and Privacy Association. It was called Failing FOI: How the B.C. Government Flouts the Freedom of Information Act and Stonewalls FOI Requests. Now, those aren't my words; that's the B.C. Freedom of Information and Privacy Association.


They did an analysis of this government's response to freedom-of-information requests from 2006 to 2009, which they reported out in May of 2009. The three main questions that were asked in the report were:

[ Page 8225 ]

(1) Can the public gain access to documents they have a right to receive?


(2) Are legally defined timelines responding to information requests being respected?


(3) Are politically sensitive requests or requests from certain sectors treated differently?


The results of this report are astounding. You would think, with some sober reflection and with this government and the ministers and the cabinet acknowledging this report, that they would bring forward some legislation that perhaps would be a key to open government, privacy protection and freedom of information.


[1540]

The results of this report indicate that the response times for FOI requests are typically well in excess of the legal timelines, in spite of claims to the contrary. They are still being used to single out particular user groups and treat them differently, based on the real or managed political sensitivity of the requests, and this leads to longer response times.


If you look at the components of this report and you look at the access-to-records component, the study found that in 2008 the government received 1,793 requests for general information. That compares with 2,381 two years before, so there's a 7 percent decline; and 2,225 in 2007, a 19.4 percent decline.


What they attribute this to — again, it's not me; it's the B.C. Freedom of Information and Privacy Association — is the increasing frustration and disenchantment with the many barriers that now characterize this government's process for freedom of information. So changes are necessary, but what we have before us is something that's not going to do it. It's a band-aid approach. It's been rushed through. That's what the stakeholders are saying.


Now, when the report looks at the delay component of the legislation and this government, the Information and Privacy Commissioner found that the B.C. government met legal timelines in only 71 percent of instances — meaning that 29 percent of requests were deemed refusals, where the government failed to respond at all or illegally exceeded the mandatory response times as laid out in the FOI Act.


By excluding personal requests, they found the rate of deemed refusals for general requests over the three-year period was, in fact, 51.5 percent — outrageous, as far as delays and returning FOI requests under this government. The act before us should have taken into account public consultation and recommendations from the committees that had been meeting in the years before.


In one other component of the report by the association the study found that requests were being flagged either because they were sensitive or came from certain types of requesters. These requests received special treatment, says the association. They took longer to process. Sort of sounds like B.C. Ferries with their special treatment of being exempt from FOI for seven years, and we're seeing the flak of that.


Although the treatment, they say, is being dealt to particular groups the government finds troublesome, these findings should be a great concern to the general public. The government says, "Yes, it is disturbing," but they do nothing about it, and this legislation fails in that.


Concluding on the report, it says: "History has taught us that excessive control of public information leads to political abuses and scandals, as well as deterioration of our public institutions." What have we seen under this government? We've seen outrageous political abuses and, time after time after time, the scandals that are out there.


"When we insist on government transparency and invest the necessary resources to make it happen, we are rewarded with institutions that are more open, honest and accountable to the public." That's what the association has been saying. That's what they reported out. They say that the legislation has failed British Columbians in that point, and right now they're seeing this legislation as being rushed through.


Here's a quote that I think would be quite interesting: "The fundamental principle must be this, that government information belongs to the people, not to the government. This means, among other things, that all citizens must have timely, effective and affordable access to the documents which governments make and keep. Governments should facilitate access, not obstruct it."


[1545]

Now, that quote was in 1998. Who was that from? That was from Gordon Campbell, the Leader of the Official Opposition. It's quite unseemly that he would make a comment like this when he drove the most secret, the most lack of transparent government that we've ever seen, not only in British Columbia but in Canada.


He wrote, back on July 22, 1999, to Darrell Evans of the B.C. Freedom of Information and Privacy Association. He also says in this letter: "Open government is at the hallmark of a free and democratic society. The fundamental principle must be that information belongs to the people, not the government."


When we have this legislation, Bill 3, before us today, we hear the mantra from the previous Premier, Gordon Campbell, where he drove the FOI legislation, open governments, privacy protection, freedom of information into the ground. It's just ludicrous that he was sending letters like this.


He says, "With these principles in mind, I'm writing to assure members of the campaign for open government that the B.C. Liberal caucus is strongly committed to maintaining and enhancing the rights and protections enshrined in the B.C. Freedom of Information and Privacy Act" — not "ensuring that resources are available so that all provincial government public bodies are able to meet or beat statutory disclosure timetables," not "ensuring that no search or photocopy fees are charged to any citizen requesting copies of their personal records."

[ Page 8226 ]

What we've seen is fees for information skyrocketing. There have been many examples out there. What we're seeing in British Columbia is that citizens are seeing their democratic right of access to information increasingly being eroded by long delays, improperly withheld documents and sophisticated screening techniques designed to flag politically sensitive requests for special treatment.


Once hailed as state of the art, our Freedom of Information and Protection of Privacy Act has fallen behind international standards, and it's badly broken. This bill before us continues a badly broken system and standards.


The minister, in her opening about Bill 3, also said that it must ensure that it stays workable and relevant for the public, the Information and Privacy Commissioner and public bodies, and that the amendments also support open government.


The past Information and Privacy Commissioner, David Loukidelis. His assessment of the performance of this government around freedom of information was that it was putting the historical record of British Columbia at risk. This is the history and the record of the B.C. Liberals.


If we go back again to 2003 with B.C. Ferries, David Loukidelis, the Privacy Commissioner of the day back in 2003, wrote a letter to the then minister, Judith Reid, about the Coastal Ferry Act.


It was the same as any other legislation in here — rammed through, no debate, no consultation. A lot of political mystery going around, where they had plans and they had sort of communication strategies happening in communities with Liberal supporters, letters to editors being written and a whole push through within 24 hours of the Coastal Ferry Act, with no consultation, exempt from freedom of information. We're seeing where we are with that right now with B.C. Ferries.


Back then the Information and Privacy Commissioner wrote a letter and said: "My recommendation is only that the operator of B.C. Ferries should be required contractually to make available to the public on regular and timely basis such safety reports as have been created in the ordinary course of its operations. I believe that the public should have access to records and that the operators should make such reports and other pertinent information available to the public on a website." That was back in 2003 with B.C. Ferries.


[1550]

We the opposition, and the public and stakeholders and advocates for years and years pushed for this government to open B.C. Ferries up to the freedom of information. Finally, under pressure, they did. They had to amend the legislation, and they opened it up. We're seeing the stories from B.C. Ferries coming through, and some of them are horror stories — whether it's dealing with safety, whether it's with maintenance, whether it's compensation for executives.


Getting back to fees, Morgan Blakley did a report on behalf of the Dogwood Initiative. He talked about fees, and he used some examples. He talked about — and I think we've heard this before in the Legislature, but it's good to get it on record again — the Sierra Legal Defence Fund having appealed an estimate of $24,000 for an FOI request.


Now, if we go back to the ex-Premier of the province, his concerns in letters and his commitment was that the B.C. Liberal caucus was strongly committed to ensuring that no search or photocopy fees are charged to any citizen requesting copies of their personal records, or anything of the such. So $24,000. It was related, I believe, to some forestry information. And their FOI request ended up being increased to a further estimate of $173,000. That's what's happening in the system we've got.


Open governments, privacy protection, freedom of information are slowly turning down and draining through the system. Fees are key barriers, and it's evident throughout the system.


We have to ensure that institutions are not allowed to charge nearly a thousand dollars an hour for mainframe access for information. This fee component is a key obstacle to an essential democratic function.


Now with B.C. Ferries it was interesting. I keep bringing up B.C. Ferries. It's something that for many years, at least for the last six years, we've called for B.C. Ferries to come under freedom of information. After seven years finally it did.


But what B.C. Ferries did is they put in a very controversial policy with how they were dealing with their freedom-of-information requests — a huge cost. Also, they had a practice of releasing it to the person and on line at the same time. It was deemed to be really having an impact and an effect on people putting in their freedom-of-information requests. After some recommendations they decided to delay it by 24 hours.


Again, it's something, as we move forward with Bill 3, a key piece of legislation…. When we look at going forward and trying to create an aura of open government, privacy protection, freedom of information, the bill before us needs some work, and most advocates and stakeholders believe that it was rushed through.


Also, there was a recent news release, just last July, and I'm sure the minister responsible for B.C. Ferries is aware of this and has had a briefing on this. These are not my words. Again, it's from the B.C. Freedom of Information and Privacy Association. The headline in this news release: "Is B.C. Ferries Covering up for the Premier's Office?" It says: "Government-owned company 'loses' more than 150 pages of records about fare reduction deal with the Premier's office."


[1555]

You start to look at stakeholders and advocates questioning and scratching their heads about what's going on not only with the freedom of information but with
[ Page 8227 ]
the tight relationship B.C. Ferries has with the government, even though it's been: "Hands off. Let's not touch it." There's still this cover-up apparently being alleged by the Freedom of Information and Privacy Association.


When they wrote to B.C. Ferries, they said they had located 189 pages of records for a $900 fee. The records were relating to copies of all correspondence, notes on telephone conversations, briefing notes, background papers, communication documents, plus agendas and minutes for any meetings regarding the Premier's announcement of a 33 percent reduction of B.C. Ferries fares and the restoration of cancelled routes in the Premier's address on October 22, 2008.


So B.C. Ferries responds quite happily, it sounds like, with a response of, "Yes, we have 189 pages, a $900 bill," but seven months later — and you note the timeline, seven months later — they can only find 33 of these documents for $300.


Now, when you start questioning those at the top, those keeping records at B.C. Ferries, you've got to start giving your head a shake and saying: "What's going on with B.C. Ferries?" On one day they say they have located 189 pages for $900 and then, seven months later: "Oh, we only have 33 pages, and you only have to pay $300." So they're questioning — and I'm sure that the minister has been briefed on this — whether B.C. Ferries is doing a cover-up for the Premier's office.


You know, it's all quite amazing, when you start looking at this bill before us. The minister in her response quoted: "The amendments to the Freedom of Information and Protection of Privacy Act address recommendations of the special committee that reviewed the act just last year."


Now, when we look at this act, advocates and stakeholders are saying that there's a lot of work to be done. The current commissioner says, "The devil is in the details," because there are no details. It's a rush to make changes to fill this calendar here, which seems to be empty for this government. All it seems to be is photo-ops for the Premier, without real consideration of the recommendations of the previous committees. Even though the minister says it was taken into it, the previous committees basically had no input and were ignored.


The right to privacy is an essential right and, in the words of the acting commissioner Paul Fraser, a part of the DNA of our province. There's an expectation that people's information — their personal, private information — is going to be handled with care and respected. As I quoted earlier, Elizabeth Denham, our current Information and Privacy Commissioner, reiterates: "The devil is in the details." What's the rush? Why the haste? That's the question.


The minister and this government have had the recommendations from the previous committees for eight years. They've had recommendations from the last committee that sat, I believe, for the last year and a half or two years, yet so many of these were ignored, even though the minister says that the amendments to this take into account the recommendations. But no, so many of them were ignored.


The committee called for public consultations, and what did we see? No public consultations; a workshop in Vancouver wondering what's going on, questioning where we're going with this important legislation. And this government sat on their hands behind closed doors and has done what they've done for the last ten years in a culture of lack of accountability and lack of transparency.


Advocates in the sector, the Freedom of Information and Privacy Association of B.C. and the civil liberties union, weren't consulted. They were surprised when this was dropped last week — this bomb about Bill 3 and the changes to legislation, and that it was coming. So it's hardly, as we've seen in the last ten years, an open government with this B.C. Liberal caucus and cabinet.


[1600]

It's huge. There are important considerations, rights, values, principles, and this legislation is not covering that.


You know, when I look at concluding my comments to Bill 3 — and I'm getting to that — I just want to look at some quotes of the conclusion of the report that came out last May 2009. They talk about: "Freedom of information is a principle that is critical to the health of our democracy. When we insist on government transparency and invest the necessary resources to make it happen, we are rewarded with institutions that are more…honest and accountable to the public. Citizens…play a more meaningful role in their governance…."


We could have had that meaningful role if the government, the minister, had taken this to public consultation, taken into consideration the many recommendations of the committees and worked with all parties instead of pushing this forward in such haste and such a rush. The results of the last study should be of great concern to many people.


I'm speaking against moving forward with Bill 3. The past Information and Privacy Commissioner David Loukidelis's assessment of the performance of this government around freedom of information was that it's putting our historical record at risk, and the bill before us will continue to do that.


Deputy Speaker: Seeing no further speakers, I'll ask the minister to adjourn debate.


Hon. M. MacDiarmid: I'd like to take just a few moments to provide closing remarks on Bill 3 and to respond to some of the submissions that I've heard from members of this House during the debate.


One of the members, perhaps more than one, has painted the amendments to this act as something that was put together with haste, and the facts really tell quite
[ Page 8228 ]
a different story. Government has taken a very thoughtful and inclusive approach over the past year to make sure that we have comprehensive amendments to modernize our freedom-of-information and privacy protection legislation.


Our government has worked collaboratively and consulted with a large group of stakeholders. Through the consultation process, we worked closely with the Office of the Information and Privacy Commissioner, which provided valuable guidance and expertise, and we're very appreciative of that. We've also incorporated feedback from several ministries, from the broader public sector and from UBCM.


[Mr. Speaker in the chair.]


In addition, B.C. Stats conducted a comprehensive consultation with more than 1,600 British Columbians. They conducted focus groups, interviews with citizens, and telephone surveys, and they hosted a public blog, and altogether, this helped to give us a better understanding of people's expectations regarding government services.


These legislative amendments directly address the changing nature of how members of the public want and expect to interact with the government.


I'm pleased to say that the amendments in Bill 3 incorporate many of the recommendations made by the special committee in both 2010 and 2004, and I'd like to once again thank the committee for their hard work and recognize the important contributions they have made.


With regard to the member opposite's statements regarding the lack of consultation with groups such as the Freedom of Information and Privacy Association and the B.C. Civil Liberties Association, I can only assume that the member was not informed or perhaps chose to ignore the fact that in fact these organizations were invited to consult. We would have valued their input. They were invited to consult on the draft legislation, but they declined.


These amendments ensure that the Freedom of Information and Protection of Privacy Act is workable and relevant for the public and also for the Information and Privacy Commissioner and the more than 2,800 public bodies it serves.


Privacy protection is paramount and remains front and centre in these amendments, and these amendments include new authorities for the Information and Privacy Commissioner.


Regarding the administration of freedom of information, I'm proud of the tremendous progress government has made over the past few years.


[1605]

Today 93 percent of FOI requests are completed on time, and we continue to make progress in reducing our response times. In 2008 the average processing time for an FOI request was 35 days, and as of March 31 of 2011 the average processing time was 22 days. That's nearly a 40 percent improvement.


We've improved our performance during this time despite a 20 percent increase in the number of requests since 2008-2009. In fact, in her most recent timeliness report the Information and Privacy Commissioner stated that given the government's current high performance, she no longer feels she needs to report on timeliness.


I'd also like to take this opportunity to point out that fees have not increased since 1993. Approximately $47,000 in fees was collected in 2010 by a department that spends $20 million a year processing freedom-of-information requests and managing government records.


The member opposite also mentioned the importance of privacy impact assessments, a tool that ensures that privacy is built into any new initiative right up front. The member went on to say that no privacy assessments have been done on the integrated case management system and then went on to state that no one on the integrated case management design team had any privacy expertise.


Well, the facts are somewhat different. The fact is that there are several privacy and security experts working on this project, both internal experts and in partnership with our service providers. The fact is that this government has completed privacy impact assessments, and those assessments have been reviewed by the Office of the Information and Privacy Commissioner.


I also find it puzzling that the opposition critic referenced a situation like the Wainwright privacy breach on one hand and then criticized a system like integrated case management on the other, a system that will allow us to identify who has accessed what information and when.


The integrated case management system will enhance privacy protection by ensuring that only authorized people get to see private information. Government has already implemented new processes for employee criminal record checks and for reporting and investigating privacy breaches.


Bill 3 includes new provisions which will provide government with the authority to demand the return or destruction of information that has been inadvertently disclosed to an unauthorized party. With these amendments, we focused on significant policy issues that will have a meaningful impact for British Columbians.


These amendments mean citizens will receive better and more seamless service, government will be able to provide those services more effectively, we will be able to better evaluate which programs work, and the stage will be set for the development of improved electronic service delivery and on-line identification for those who choose to use this kind of information on line. These are all important issues, and they're the issues we heard about when we surveyed over 1,600 British Columbians this past year.


In closing, our government has committed to more active engagement with citizens and to listen to their
[ Page 8229 ]
needs. Bill 3 also enshrines open data and open information into law, and this sends a clear message of our commitment to opening up government.


Open government is about opening up the lines of communication with citizens, and these amendments do just that. They permit the use of tools like social media so government can more actively engage with citizens in the way that they want us to.


As the Premier stated at the launch of open government, we are changing our approach to governing by putting citizens at the centre of our web services and making government data and information more freely available. Open government is about sharing information and giving British Columbians more opportunities to participate in decisions that make a difference in their lives.


I couldn't agree more, and I look forward to committee stage, where we can canvass these issues more fulsomely.


With that, I move second reading.


[1610-1615]

Second reading of Bill 3 approved on the following division:


Hon. M. MacDiarmid: I move that the act be referred to a Committee of the Whole House for consideration at the next sitting of the House after today.


Bill 3, Freedom of Information and Protection of Privacy Amendment Act, 2011, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.


Hon. I. Chong: I now call committee stage of Bill 11, Greater Vancouver Transit Enhancement Act.


Committee of the Whole House


Bill 11 — Greater Vancouver
Transit Enhancement Act


The House in Committee of the Whole on Bill 11; D. Horne in the chair.


The committee met at 4:20 p.m.


On section 1.


H. Bains: I'm looking at section 1(a) in this bill. It refers to amending two parts of the Motor Fuel Tax Act. One is 4(1)(c) and the other one is 10(1)(c). One talked about gasoline tax and the other one talked about motive fuel tax. So perhaps you could explain to us what the difference is.


Hon. B. Lekstrom: Before I begin answering, I will introduce the staff I have with me. Joining me here this afternoon, I have Kirsten Pedersen on my right. On my left I have Maria D'Archangelo, and behind me I have Kevin Volk.


With that, if you can see those, Member, that would be fine.


Motive refers to diesel fuel, very simply. It's the definition that is used when we refer to that.


H. Bains: When you look at 4(1)(c), it lays out a number of effective dates. There are subsections (i), (ii), (iii), (iv), and it talks about an effective date of a certain rate of tax per litre. That's what is in 4(1), and then 10(1) also talks about that. So are those two different taxes that will deal with just one area of the taxes?


I'm just trying to get to…. If you're purchasing gasoline to fill your tank, you pay a certain tax. Then you buy diesel, according to this, and then you pay the different one. But with two different rates listed in here; 4(1)(a) talks about 7.75 cents, and (b) talks about 13.75. This is the tax that
[ Page 8230 ]
goes to the government. And 10(1) talks about 8.25 cents versus 14.25 cents. So there is about a cent difference, or thereabouts, between the two.


What is the difference here? The gasoline tax is a little less than the diesel tax. Is that what it is?


Hon. B. Lekstrom: In referring to that section 10, the diesel tax is a little bit higher. That's why you're seeing the differences in the numbers that you've been quoting. So there is a differentiation between diesel tax and the gasoline tax.


H. Bains: Perhaps while we're here, so the people who are listening will understand what we are talking about…. When you are talking about the South Coast British Columbia Transportation Authority, can the minister explain what we are talking about? And what is the relationship with TransLink and the South Coast British Columbia Transportation Authority?


[1625]

Hon. B. Lekstrom: The relationship…. Obviously, the Greater Vancouver Transit Enhancement Act is actually amending the South Coast British Columbia Transportation Authority Act. So the changes that we are applying to that act are included in the act under Bill 11, which we're discussing.


H. Bains: No, I understand that part, but I think for people who may be listening — there might be some out there — they may not understand what we are talking about when we are talking about South Coast British Columbia Transportation Authority. Many of them can directly relate to TransLink. They understand what TransLink is. Maybe you could explain: what is the relationship of TransLink to South Coast British Columbia Transportation Authority?


Hon. B. Lekstrom: A good question, certainly for the people that are watching at home, I think, to clarify that. The South Coast British Columbia Transportation Authority Act is actually the legal entity which is TransLink, in a sense. That's what they operate under. We know TransLink, as you said, simply as TransLink in the Lower Mainland, but this is the legal piece of legislation, being the South Coast British Columbia Transportation Authority Act, that they operate with and that defines what they do.


H. Bains: Under section 1, perhaps the minister could explain: what is the purpose behind this change? The act is being changed, and perhaps the minister could let us know: what is the purpose behind this, and what will this amendment do, in real terms, for the motorist, for the transit riders or for TransLink — for that purpose?


Hon. B. Lekstrom: A couple of questions came from the member opposite. Section 1, in its simplest format, will continue to allow the three cents that was changed some time ago. This will also allow for TransLink to apply an additional two cents fuel tax. And what that fuel tax is for — I believe we canvassed this under second reading.


The Mayors Council have asked the government to put forward legislation, asking for their ability to increase the fuel tax by two cents, which will allow for what they refer to as the Moving Forward supplement, which includes the Evergreen line and 11 other projects to increase and enhance transportation and transit in the Lower Mainland.


[1630]

H. Bains: I'm looking across the page at the explanatory notes. The notes talk about South Coast British Columbia Transportation Authority Act, section 27.1. It goes on to say: "...limits, in section 27.1 of the act, the references to sections 4(1)(d) and 10(1)(d) of the Motor Fuel Tax Act so that those references do not capture sections 4(1)(d)(ii) and 10(1)(d)(ii) of that act as enacted by this bill."


Can you please explain what this explanatory note means, that they do not capture? It seems to me that the second part of 4(1)(d)(ii) and 10(1)(d)(ii) are the additions, as I see it, because the original one is simply 10(1)(d) and 4(1)(d). What do you mean by they do not capture the additions? What does that mean? I guess that maybe it's some legal term that means…. If you could try to explain what that means.


Hon. B. Lekstrom: The question you asked is a technical question in a way, and I'll do my best to answer this. What it is, is 4(1)(d)(ii) refers to the two cents, so it's not captured twice as well. That is clear gasoline; 10(1)(d)(ii) is the two cents on the diesel side. Again, hopefully, that is somewhat clear. When you look at that, the first section is referring to what we talked about just briefly moments ago, the three cents, and not confusing the two. So that is the addition.


H. Bains: Certainly it is confusing, because when you look at the amendment and when you try to place that on the act itself — the amendments that are being referred to here — it simply adds another section. So there is three cents; that's one. Then the second one, (ii), would be the two cents. It does leave little impression here that there is something in here that if you don't put that in there, it will capture the two cents in addition to the three cents, I guess. That maybe is the issue here. But we'll move on.


[1635]

The minister said that the idea and the purpose behind this amendment, under section 1, is to provide the Mayors Council, who asked for an additional two cents to pay for certain projects, Evergreen being one of them, and then a number of other projects that they have listed in the supplement.


Now, fuel prices are, on a daily basis, going up and down. They have put some assumptions on how much
[ Page 8231 ]
money this will raise. Perhaps the minister could start by telling the House: how much are they expecting to raise by adding this two cents or giving the authority for two cents? How much revenue will they actually collect per year, if this act is passed and they have the authority to add two more cents of revenue?


Hon. B. Lekstrom: The number will be $40 million. That is a portion of the cost to fund the Moving Forward package, which includes the Evergreen line. The direction question on how much the two-cents-per -litre increase will raise for TransLink: $40 million per year.


H. Bains: The gas prices are fluctuating on a daily basis, and as a result, the consumers adjust their habits accordingly. Has any analysis been done by the Mayors Council or by the ministry of what the fluctuation would be if the purchase by the consumers, as a result of higher prices, results in…? What would be the effect on both outside and inside? For example, what's the maximum they could collect, depending on what the rates are, and what would be the least amount they will collect? Is there any analysis done on consumers' habits as far as the pricing fluctuation is concerned?


Hon. B. Lekstrom: The question you've asked is what happens if fuel goes up, for example, in price and people slow down their driving habits. That is work that TransLink has done. The Mayors Council, I believe, in conjunction and working with the people at TransLink, would look at that. That's not something we deal with in this bill.


This bill deals with the response to a request from the Mayors Council to allow for them to apply a two-cent-per-litre increase to fuel in the Metro Vancouver area — to do that. The question you're asking is not one we deal with.


This is an issue that TransLink or the Mayors Council have asked us for permission so that they could apply this tax to it. They've done their work on that, and similar to the previous three cents — or, I guess, all included, the 15 cents tax prior to this — they would base their calculations all on that, that they use to fund their transit systems.


H. Bains: I guess that maybe the fact is that the Mayors Council and TransLink will do that work, but their work is based on what is needed in the region as far as improving and building those new infrastructures. My concern is that if the minister hasn't asked those questions of the Mayors Council or TransLink, then by agreeing to this two cents, is there a chance that this may not be enough for what they think they need? Or are they charging too much, and the consumers may suffer, whether they need those two cents or not?


I think that, basically, is the question, because at the end of the day, the buck stops here, with the minister. You will be responsible as far as whether they have enough revenue or don't have enough.


[1640]

Also, though, on the consumer side, the consumers will be asking those questions when the minister goes back to his constituency: "Why are you charging me two cents? How do you know they need two cents to pay for the project that they are talking about?" Have you asked those questions? Because you are ultimately responsible and accountable to the taxpayers, as we all are.


So I think the other question, on the second part, would be: what effect will it have on the consumers? On the average, what are we expecting consumers to pay in this two-cent-per-litre additional gas tax, if this act is passed?


Hon. B. Lekstrom: There may be some confusion, possibly, from the member. I want to be very clear. This is not a two-cent-per-litre gas tax that the government is saying we're requesting. This is a response to the Mayors Council, who have requested, through myself as the Minister of Transportation, government to put forward the legislation requesting that they have the ability to add an additional two-cent-per-litre fuel tax in the Metro Vancouver area. I know that when I go back to the northeast, I don't think I will be questioned from the people of Dawson Creek or Fort St. John or others on this.


What it's used for is that the Mayors Council, working in cooperation with TransLink, looks at what the needs are and what they would like to do not only today but in the future. In order to do that, what we're talking about today is the Moving Forward package, a two-cent-per-litre increase requested by the Mayors Council. We're discussing that today on the floor. That money will go to a focused supplement, which includes, I believe, 12 items in total, one of which is the Evergreen line, a $1.4 billion project.


The Mayors Council looks at that in cooperation with TransLink. They talk about what the needs are, what they would like to do. They put together the request and bring it to the government. So for the member to say that ultimately we're accountable for that, I think I would differ. Maybe I'm misunderstanding the member in that sense, but this is the Mayors Council, on behalf of the people they represent, asking government to provide them with the opportunity to raise the fuel tax by two cents in order to pay and help fund their Moving Forward supplement plan.


H. Bains: No, there is no confusion. I fully understand how and why we are here today and discussing this issue. But I think it's ultimately government, here — the British Columbia government — that's going to give them authority to collect an extra two cents, as they have made their case that they need in order to pay for some of
[ Page 8232 ]
those additional transit services that they'd like to build and rebuild.


We would be asked this question: why are you agreeing to this two cents? If you don't agree under this act, if you don't change this act, they have no authority to collect two cents. But by virtue of you agreeing to change the act, which authorizes them to collect an additional two cents, we ultimately — this House, ultimately, and the minister — become responsible and answerable to the consumers that you are giving authority to TransLink through the Mayors Council to add another two cents, or up to two cents, of gasoline tax.


Why have you agreed to this? Why are you changing this act? Just because they asked for it, you agreed with it. I mean, that's the basic answer I'm hearing. But I think there has to be justification.


[1645]

What is the effect on the consumers? Why is it that they need two cents? I think that's the explanation that, maybe, you know, we should have for the record, for people who may be reading Hansard later on or who are watching right now.


Hon. B. Lekstrom: I guess the reason we're here, and I'll reiterate this, is at the request of the Mayors Council. With TransLink, they deliver transit in Metro Vancouver. I think they do and have done a good job in doing that on behalf of the people they represent.


So 15 of 21 of the Mayors Council voted to support the supplement and ask that the provincial government allow them or grant them the ability to increase the fuel tax by two cents so that they could fund their portion of, certainly, the Evergreen line, which is $400 million.


I'll go through this. It's about a $1.4 billion project. The provincial government has said: "We are in for $583 million." The federal government said that they were in for $417 million. The Mayors Council, TransLink, said: "We will be at the table with $400 million." Those discussions ran into some difficulty wondering how they would raise that $400 million.


Through discussions that took place, they landed on their supplement, which was to ask…. It is a joint between this two cents, as well as another part that they may have to go to if another avenue isn't found. But the two cents is the request of the Mayors Council to us, as a government, to allow them to raise their portion, to fund what they've committed to.


I am trying my best to answer this. It seems clear to me, but I understand if somebody is reading it or watching at home…. TransLink provides service in the Lower Mainland, Metro Vancouver. They actually will fund what they can.


This is actually a joint-funding proposition. We have our money, as I said. The federal government has their money, which all of us contribute to. Then they have a clear focus that they have an amount that they have to raise from within their region. This two cents is going to allow them to do that, and they've requested us to grant them the authority to do that.


H. Bains: Thank you for the answer. I think it is good that we have this dialogue, because people out there watching need to understand what is going on here. Why is this government agreeing to two cents additional gas tax that the consumer will be asked to pay?


Also, is it not the case that the mayors…? This is not enough. The minister talked about the Evergreen line and 12 other projects, but $40 million is not enough to pay for all of that. Perhaps the minister could explain: why are we agreeing to $40 million when they need close to $70 million? How is the gap going to be made up?


Hon. B. Lekstrom: I do want to go back to make sure it is clear. I know sometimes it's politics, as we said the other day, but we're doing this because of a request from the Mayors Council to fund their portion. So $40 million will be raised by the two-cent-per-litre increase that they've requested.


The total package, as you've said, will need about $70 million to fund. That's the Moving Forward package. Presently it will be funded from the two-cent-per-litre gas tax that is being discussed here today. As well, a property tax, if needed, would be implemented roughly a year and a half out from now.


[1650]

Now, one of the commitments we made was…. The Mayors Council would like to sit at the table — and I've agreed to this, as the Minister of Transportation — to say: "Look, are there other avenues that we can look at? Are there other funding sources, rather than property tax, not only for this that we're talking about today but, as we move forward, for all of the future projects that are going to be needed and, certainly, are on the table right now?"


We've made that commitment that we want to sit at the table, find out what the options are there, to access funding for the Mayors Council and TransLink. We're going to do that, but that is going to take some time. It may take a month, two months, three — I'm not sure what the time frame will be. My commitment is I'd like to deal with it very soon.


While those discussions are ongoing, I think everybody was pretty excited to be able to reach an agreement, to get in the ground, to not only build the Evergreen line but the other 11 projects that are part of the Moving Forward package.


In summation, they need a total, I believe, of roughly $70 million per year to fund that supplement they voted on. So $40 million will come from the two cents per litre we're discussing here today, and, if necessary, property tax would fund the other portion. I'm quite confident that we're going to come to the table, though, and find other solutions for that, that both the Mayors Council and myself have committed to sitting down and discussing.

[ Page 8233 ]

H. Bains: So we're clear that the amendments to the act are being discussed here, which will, if passed, give the mayors and TransLink two cents per litre additional revenue, which will generate roughly $40 million per year.


My understanding, and if the minister could clarify…. Is that the amount, $40 million, needed by TransLink to borrow their portion of $400 million? So $40 million is the amount that they need to service that debt?


Hon. B. Lekstrom: I guess, with all due respect, that would be a question you would ask TransLink. They're an autonomous body that actually operates and sets that. What we're discussing is giving authority for that body to raise additional revenue, and what we are talking about today is through a fuel tax. So I think the question you're asking, although it may be a very good question, is not one to the province of British Columbia but more appropriately to TransLink themselves.


H. Bains: My question arose out of the answer that was given, that this is the money that is the revenue generated through the act that we're passing — at two cents, $40 million. The minister explained that it is going towards the Evergreen line and 12 other projects.


So when we are talking about this money going towards the Evergreen line and 12 other projects, $40 million isn't going to pay for the Evergreen line and isn't going to pay for 12 projects. For people who are sitting here in this House and outside, they need to know. We're passing two cents so that TransLink and the Mayors Council have the authority to collect that additional two cents, which will generate $40 million per year.


But that money — there is a purpose for that. That purpose was explained to the minister — why they need the $40 million. That's the clarification I'm trying to have, that the $40 million is needed so that TransLink will be in position to borrow their portion of $400 million, as the minister mentioned earlier today.


Is that how we're helping TransLink — to enable them to borrow $400 million, their portion of the Evergreen line?


[1655]

Hon. B. Lekstrom: I'll try this again. What they have asked for is a two-cent-per-litre increase. That's what we're discussing today. That will raise approximately $40 million per year. The supplement that the Mayors Council voted on and passed has not only the Evergreen line but about 11 other projects in it. I think it's about $70 million a year that they need to do that.


Now, what I can't answer…. That's why I'm trying to say it's better positioned, I think, asking TransLink this. I don't know if they're borrowing the full $400 million. I don't know if they have a $200 million reserve and are going to borrow $200 million, make the payment to pay the $200 million debt and replenish a $200 million reserve. They may or may not have that. I'm just giving you an example of what could be.


That's why we can't answer that question. So if they had to borrow all of the money, the simplest answer is: the money being raised would go to service that debt.


H. Bains: As to the second portion…. I want to ask the minister, because one mayor, when I was sitting through that meeting, raised the question that it's not just two cents. He said: "The government made it conditional that they must put property tax on the table to go along with this two cents." So can the minister answer whether that is correct?


Hon. B. Lekstrom: Through discussions…. First of all, I don't think anybody was forced to do anything. I think we should be very clear on that. The Mayors Council, I think, are a very capable group, elected by the people of Metro Vancouver in their own capacities. They've come to the decision that in order to move forward….


I think it's fair to say the Evergreen line will speak to that primarily. I think most people can relate to that. There are a number of other projects. It's been a discussion point for a long time. I think one of your members the other day said it was referred to as the Nevergreen line.


I'm quite happy to be here today to say that it is the Evergreen line and we're moving forward with it. I say "we" collectively as all British Columbians.


But the funding proposal was what the Mayors Council discussed. They came to a resolution. I believe it was 15 of 21 of them voted in favour of that; 15 of the 21 represents 70 percent of the population of Metro Vancouver. So they indicated that as we move forward, a two-cent-per-litre increase, as well as a time-limited property tax if needed — I want to be very clear on that; if needed — would fund the full $70 million that we've talked about just previously.


We also — and I say "we" because those are the discussions I've had with the Mayors Council as the Minister of Transportation — agreed to sit at the table to say: "Look, are there other funding sources, other than just property tax?" There's certainly a concern from the Mayors Council, whether it is the 15 that voted yes for this or the six that voted no.


For example, they're saying: "Property taxes are steep right now. We're going to look for other ways to raise revenue, but until we find that, we are going to backstop." Again, I'm speaking, you know, really as TransLink or the Mayors Council now, through the discussions I've had. "Until we have that agreement, if we're going to move forward with the Evergreen and the Moving Forward package, we need to" — Mr. Crilly; I believe you would have heard his comments — "have a funding source, or we can't move ahead."

[ Page 8234 ]

That funding source is the two-cent-per-litre fuel tax we're talking about here, as well as the, I guess, time-sensitive, you could say, property tax.


I'm confident we're going to sit at the table. If there are options out there, and I think there are many, we're going to try and find a solution, as the Mayors Council has said, to say: "Look, we would like to use the two cents, and if there are options other than property tax, we're going to pursue those." That's where we're at today.


[1700]

H. Bains: Just one last question on this one. I guess I asked that question because those doubts were raised in that meeting. Well, not doubts; I think they made very strong statements.


They actually refer to the Premier that morning saying…. She was on the radio, and she said: "Well, we're going to approve two cents if the mayors pass two cents." He said she never mentioned that it was conditional that we put property tax for the second portion of the funding source on the table, and he said: "That's what we were facing. We were pushed into a corner. We agreed to two cents, and now…." But they also put a condition that you must put property tax as part of the source of funding to bring it up to the $70 million that they need.


[D. Black in the chair.]


Very easily they could have set it at 3½ cents, which probably would have raised $70 million or close to $70 million. If you were to do the 2.4 cents and another 1.2 cent, it would be close to $70 million. So I think they could have easily done that. I think they probably would have preferred to do that. But their assertion was that the government put them in a corner, that the government put a condition. "Yes, we will go up the two cents, but you must up the property tax to fund the remaining part of the project, which we need to bring it up to $70 million."


I just want to ask the minister to clarify that, if that was not the condition by the provincial government — because some negotiations took place. Why did they come up with two cents per litre? Why did they put a time-sensitive two-year property tax so that there's a time for them to come up with a new source of revenue? I'm asking this question. 


That is the perception out there. They thought they were stuck. They were pushed into a corner. They had to pass two cents. Yes, they knew that they needed that money, but it was conditional that they come up with the property tax portion of the revenue source to make up $70 million.


Hon. B. Lekstrom: We want to be clear, as the member does too, whether it's the watching public or people. There's no formal condition. I want to be very clear on that. This was not something that said: "You must do this if we are to entertain this." 


This is obviously something that the Mayors Council discussed. I think it's fair to say that there were ones that had concerns about a property tax portion. There were others that said, "You know, we'll do that in the interim while we actually sit down to discuss the longer-term funding solutions," which I mentioned earlier.


It's interesting. I mean, we wouldn't be here discussing this bill if the Mayors Council had not passed the supplement asking the government to do so. So we should be clear on that. If they hadn't, and they couldn't raise the revenue, not only for the Evergreen line but the Moving Forward package, none of that would happen for the people that they represent. I know the members across the way. Many of them live in the ridings that are directly affected by many of the developments that are going to take place, not just with the Evergreen line.


To be as clear as I can, the Mayors Council…. We had good discussions. I'm looking forward to many more good discussions, but I don't think it would be fair to say that anybody held a gun to them and said: "You must do this." 


These are grown men and women who represent the people that they're elected to represent very well. We've had good discussions. I'm looking forward to future discussions, where I think we're going to have some very good debate and discussions about what the future is going to look like as we move forward with future developments beyond these.


[1705]

H. Bains: Just one question on this, because we will be talking about this later on. It talks about South Coast British Columbia Transportation Authority. Can the minister explain how that is run? Who are the directors, and who do they report to?


Hon. B. Lekstrom: I'll go back to something earlier. You'd asked the question — the South Coast British Columbia Transportation Authority Act is what we're discussing: who is the board of that? That is TransLink. So it is the TransLink board, and that board is selected by Mayors Council. 


Section 1 approved.


On section 2.


H. Bains: Here, although it existed in the current act, 27.1, there is the same language: "In this section, 'director' has the same meaning as in the Motor Fuel Tax Act." Can the minister explain…? A director has the same meaning as in the Motor Fuel Tax Act. How does that work?


Hon. B. Lekstrom: The reference in section 2, when we talk about the director, has the same meaning as in the Motor Fuel Tax Act. That is to ensure that it is the
[ Page 8235 ]
same director they're referring to, as in the South Coast British Columbia Transportation Authority Act.


What they're trying to do is make sure there's continuity — that that director is one and the same between those two acts. Right now that director is the executive director of consumer taxation programs branch in the Ministry of Finance.


I'm trying to predetermine what your next question is, Member.


[1710]

The Chair: Member, are you on section 2? 


H. Bains: I thought I was going by subsections. There's subsection (1) that I was on. So subsection (1) could pass. I mean, are we going by subsection or by the whole thing?


The Chair: Yes, we're dealing with the whole of section 2.


H. Bains: In subsection (2), under the new amendment that is being added to, they talk about how the authority "may, by bylaw referred to in subsection (5), set, as the rate of tax payable under sections 4 (1) (d) (ii) and 10 (1) (d) (ii) of the Motor Fuel Tax Act, a rate of tax that does not exceed $0.02 per litre."


So if the minister could explain and talk about how the authority "may, by bylaw referred to in subsection (5), set…the rate." What's the procedure about changing their bylaw or adding that bylaw? Is there a procedure set in now? Because we are talking about a new language being added to, as we are talking about here, under 27.11. So is that a new requirement, or does the requirement to change bylaws or make bylaws already exist?


Hon. B. Lekstrom: So this section. TransLink operates and gets authority by bylaw. That's how they operate in their structure. So what this section does simply is allow them through bylaw to deal with the two-cent-per-litre increase that we're discussing here today. It is a procedural one.


[1715]

H. Bains: When I am comparing this, the additional two cents and the rules governing the bylaw requirement of the authority to implement this with the three-cent portion, which already exists. I see little difference, so maybe the minister could explain what the differences are and why those are different.


Hon. B. Lekstrom: This section is somewhat streamlined, the reason being…. What the member was probably looking at is the commissioner test. It seems somewhat redundant. The commissioner has been engaged in this from the beginning. The commissioner provided a report already. He has looked at this.


So the section we're talking about and the question you ask, saying, "It seems a little shorter" — I guess, to maybe not put words in your mouth. "It didn't include everything…?" 


The commissioner test is not there because the commissioner has been engaged in this. It seemed somewhat redundant.


I want to be very clear, and I think that the member would agree, that this is not because the commissioner has not been engaged. It could be seen that way. He has been engaged. He did his report, and we have streamlined this act because this is specific on the two cents. It wasn't necessary. It would have been redundant.


H. Bains: That really is a concern. Three cents. I think the same test applied, or that there was the same reason why the requirement of three cents is in the act — to provide them with the additional revenue to pay for their improvement and projects. But now it seems to me that for two cents the commissioner is completely taken out, that they do not have to justify to the commissioner before it goes to the Mayors Council.


[1720]

I think I'm just worried that the commissioner mention is not there. It may have been — you know, the report isn't before us — that the commissioner test is already conducted and the commissioner already approved whether that's the case.


Maybe the minister could say to them that it has followed the process that is required for three cents and that we are at a stage now to provide them the additional two cents and that it has met the test of the commissioner.


Hon. B. Lekstrom: Obviously, we want to be very clear. I do think the member would agree that there is no intent to not have the commissioner involved. In fact, the commissioner has been involved. He put a report forward. He put it before the Mayors Council. The report confirmed that the supplement was reasonable, and it laid out how we would fund it.


The portion that the member, I think, is referring to, on the commissioner test…. That was used, actually, to determine, when there were increases asked for at that time, that it wasn't overly weighted towards a fuel tax, for example — that there was a balance on that. This supplement lays out clearly the balance between fuel tax and property tax if needed — a time-sensitive property tax.


[1725]

Again, I want to be very clear — and certainly, I think, the member would follow that — that the commissioner has been involved. He was involved on the front end of this. He has put a report forward. He put it in front of the Mayors Council. That report confirmed that the supplement was reasonable. So that's why this act was streamlined and it doesn't have that test in it. That test, in essence, has been completed through the report that
[ Page 8236 ]
the commissioner has already put before the Mayors Council.


H. Bains: It would be of concern to anybody watching and listening today. If you look at the test that applies to three cents, for example, and the procedure that is set out in the act here…. That is that TransLink will put together a supplement and the revenue sources to fund that. It goes to the commissioner. The commissioner, according to the act, will consider the reasonableness of the estimate used by the authority to determine the amounts referred to in subsection (4)(b).


Then, if the commissioner determines that it meets the test, it gives the okay to proceed. Then it goes to the Mayors Council. Then the Mayors Council approves or disapproves the supplement. But now it seems to me that we are taking the commissioner right out, to approve two cents, but the Mayors Council is still referred to here. So although the mayors have already talked about and approved two cents and voted on it, it is listed here, if you go on to (3)(b): "without limiting section 204 (c), the mayors' council on regional transportation must, if it approves the supplement under section 204, provide the authority with a copy of the resolution approving the supplement."


I think, if the minister gets where I'm coming from, it starts out, this new language here, "The authority may, by bylaw referred to in subsection (5)..." and then goes on to: "(3) Before passing a bylaw referred to in subsection (2) of this section, (a) the authority must identify the rate of tax in a supplement." Then it goes on to the mayors directly. But in the previous section, governing three cents, you still had to go through the commissioner and then go to the mayors.


I'm just trying to figure out…. Mayors have already dealt with this, but the mayors are still mentioned in here. When we go further, the bylaws are not passed until they go through this procedure that is laid out in this section and in subsequent sections here.


My question is: what was the purpose of removing the commissioner from this section when we have that included in the three-cents section of the act?


[1730]

Hon. B. Lekstrom: I guess I go back to probably one of my first answers that we gave. This was to streamline this act. So just for the public, and I know that the member would want this clarified as well, there is no intent and has been no intent to not have an overarching look at this by the commissioner.


In fact, the commissioner has been involved from the front end of this one. Actually, this supplement has dedicated funding. They have a two-cent fuel tax and property tax that will fund this supplement. There is overarching guidance by the commissioner in the act itself. What we have done, rather than duplicate it…. I think that's where the confusion is.


The commissioner has been involved. I know that the member is aware of the report the commissioner wrote. I think we were even at a meeting together where the commissioner was there. He has looked at this. He has put a report together, put it before the Mayors Council and concurred that it is reasonable — this supplement.


There is no intent through this legislation, nor through what the Mayors Council have asked of us, to negate the oversight of the commissioner. It has actually been dealt with that way. What we're talking about and what the member has raised is the section that dealt with the three cents, which was not as dedicated as what we're talking about here with a supplemental plan talking about the projects and the funding sources that will fund those exact projects.


It sounds confusing, but there is oversight by the commissioner. In fact, the commissioner has already dealt with it, versus on the back end, which I think the member is referring to, that after the three cents was approved, it would have gone back to the commissioner to review to make sure that it wasn't going to be raised or that there was a balance there. The commissioner has already done that on the front end with the report that he has put before the Mayors Council, which has said that it's acceptable.


[1735]

H. Bains: As to the explanation, I'll just take the minister back to the existing act, 27.1(3)(b)(ii), because it does talk about: 


"(ii) consider the reasonableness of the estimates used by the authority to determine the amounts referred to in subsection (4) (b), and (iii) if the commissioner determines that the rate of tax is consistent with subsection (4) (b) and that the estimates referred to in subparagraph (ii) of this paragraph are reasonable, provide the authority and the mayors' council on regional transportation with a notice confirming that determination."


My question to the minister is: has that happened, and if it has, when did it happen?


Hon. B. Lekstrom: Yes, the commissioner has done so. He dealt with that simply by the report he has placed before the Mayors Council confirming that the supplement is reasonable and acceptable. That's how he has met that obligation.


H. Bains: Perhaps the minister now can explain. Then, knowing what we have and with the explanation that the minister has given to the House, how will this proceed if this act passes today? Where will it go from here? It will not go back to the commissioner, as the minister has said. Will it still go to the Mayors Council? Or have the mayors already dealt with it? It's a done deal. It goes to the authority now, and the authority will be in a position to change the bylaws to incorporate this change to generate these extra two cents. 

[ Page 8237 ]

Hon. B. Lekstrom: From the point we're at today, Member, where we're discussing this, should this bill pass through this House — which I'm hopeful it will, and I think the member would concur with that — it would then go back to TransLink.


The board of TransLink would pass their formal bylaw and, along with the resolution of the mayors, which has already been done, it would then be forwarded to the director — the executive director of consumer taxation programs branch is the director that we referred to earlier, which would be under the Minister of Finance — to allow this to all take place.


The process is that we deal with the bill today. If this bill passes this Legislature, then a formal motion or bylaw would be passed by the board of TransLink. That would be forwarded to the director.


[1740]

H. Bains: So it has proceeded through all of the stages that it was required to, as far as the three cents are concerned. It has gone through the stages, and now it is at the stage where the authority is in a position, if the bill is passed today, to pass bylaws, which I guess the procedure is. They draft it up. And when we say "the authority," it is the board that is going to pass the bylaw, and then it is passed on to the director. Then it becomes the law, or then they are in the position to start collecting two cents. I guess that's the question.


Hon. B. Lekstrom: Yes. The bylaw — once the board passes that, they would then forward it to the director. But that tax could not be collected prior to April 1, 2012, as laid out.


H. Bains: But then it also talks about, "...at least 2 months after the date on which the bylaw is received by the director under subsection (6)...." We talked about it earlier. For example, if they have gone through the stages, now they are in a position to pass the bylaw. And once that is done, it is passed on to the director.


Then the effective date is earlier. The earliest could be April 1, 2012, or it is two months after, if the director receives that notice of bylaw after April 1, 2012. It will not come into effect two months after the director has received the notification of the bylaw. Is that correct?


Hon. B. Lekstrom: What the member is asking…. If there was no date set in the legislation, that would be true. The two months that you've referred to would come into play. But we're talking about, under section 2…. We would look at (5)(b), I believe, under there and, if the member is following me: "set, as the date on which that rate of tax is to take effect, a date on or after April 1, 2012...."


That would assure that if this bill passes and two days from now TransLink or the board passes their bylaw, it couldn't begin collecting a tax two months from that day. That's why the date is in there. It could begin collecting it after April 1, 2012, but not before.


H. Bains: So the earliest…. In order to collect April 1, the director must receive, prior to February 1, the notification of the passed bylaw. Is that correct?


Hon. B. Lekstrom: That is correct. It would have to be in the hands of the director by then.


H. Bains: Another question. I think it authorizes the authority, through bylaws and going through the process, to collect an additional two cents per litre. But in order for them in the future — if they feel that we need only one cent, because they have come up with new sources of revenue, as the minister has talked about earlier on — to replace the property tax, what will be the procedure for them to reduce or completely eliminate these two cents?


[1745]

Hon. B. Lekstrom: This piece of legislation we're discussing today allows TransLink to collect up to the two cents. So should they determine, as the member said, that they only need one cent, that's their discretion on that. Certainly, the Mayors Council…. I know they are elected by the people they represent. I don't think too many people would be upset with them if they had the opportunity to have another funding source or for some reason they didn't need the full amount. This supplement actually indicates that they do, but it's their autonomy.


This bill allows up to that amount, but should they, for some unforeseen reason — I'm not sure what it would be — not require that, they have the ability to not collect that full amount.


H. Bains: I guess maybe I'll ask the question from a different angle. Right now they have gone through the stages, and here we are giving them authorization to collect these additional two cents, because that's what they need to support the supplement that….


They will start collecting April 1 or thereafter or around that time. But then the process starts to find new sources of revenue, either to pay for these existing services that they are funding with these two cents or additional. There is a comprehensive, long-term plan that comes through. Now they are looking at different sources of revenue. It could be anything: a road pricing or tolling. It could be any other source. Or the minister or the government could come to their senses one day and say: "Look, we're going to fund all of that."


My question is then: once they start collecting, how do they stop collecting? Do they need to come back to the government to change the act? Or do they have the authority to simply not collect without changing the act again?

[ Page 8238 ]

Hon. B. Lekstrom: This would be at the discretion of the board. If for some unforeseen reason somebody left them a billion dollars, say — perhaps you yourself, on a good day, may want TransLink to have a bunch of money — they do not have to come back to change the legislation to say: "We're going to lower the two cents to one cent" or "We're not going to collect it." That would be up to the board. They have that authority and that autonomy once this is passed.


H. Bains: Obviously, I was mistaken again — not to have high hopes for the government side to come to their senses and have their priorities all straightened out so that the transit needs of the Lower Mainland are front and centre and the government would come to the table with some sort of funding and rearrange the priorities.


[1750]

Anyhow, that is not expected, and I don't blame the minister for not offering on behalf of the government, because we know who we are facing and who the minister is facing.


I think those are some of my questions, but my colleague from Burnaby-Edmonds may have one or two questions.


R. Chouhan: Will this additional fuel tax of two cents per litre pay for the new bridge to replace the Pattullo Bridge which, as we all know, is old and unsafe? It will be more unsafe when we have a toll on the new Port Mann bridge. Is there any money that will be in this new tax to replace that?


Hon. B. Lekstrom: Actually, this is dealing with the specific supplement that the Mayors Council has passed. This deals with the Evergreen line as well as 11 other projects that are laid out in that supplement.


I believe the member is probably referring to the Pattullo Bridge. That would be TransLink, but that's not what we're discussing today under this bill or the supplement that the Mayors Council has passed.


Section 2 approved.


On section 3.


H. Bains: Perhaps the minister could explain the consequential amendments. What do you mean by this, when we are talking about consequential amendments? Perhaps the minister could answer that question.


Hon. B. Lekstrom: Before I answer, I will take the opportunity to introduce Anne Foy, who is joining us here. She is with the Ministry of Finance, a staff member helping us out.


It's consequential because it has to align with the section in the South Coast British Columbia Transportation Authority Act. This consequential amendment under the Motor Fuel Tax Act does that. That's why it is referred to as consequential.


H. Bains: The only change I notice here is under sections 3 and 4. Section 3 we talked about earlier. It is the gasoline tax. Section 4 refers to the motive tax, the diesel tax, as the minister explained the meaning of it. Good thing that I gave the minister a heads-up before we started.


So 3(d)(ii) and 4(d)(ii) are the additions to the existing act. Is that correct?


Hon. B. Lekstrom: Yes, that's correct.


Sections 3 and 4 approved.


On section 5.


H. Bains: These are transitional provisions. Perhaps the minister could explain how that is different than the consequential amendments. What is the purpose of this section 5 here?


[1755]

Hon. B. Lekstrom: It is a transitional provision for the reason that although this tax…. If we use April 1, 2012, for example, and somebody went out and purchased a bunch of fuel prior to the coming in of this new tax but had delivery after April 1 — if that was the implementation date — then they would be responsible for that tax. It's to avoid tax avoidance, to prevent somebody from going out, buying a bunch of fuel today, having a new tax come into force April 1 but having the fuel that they purchased today delivered next summer, say, for example.


H. Bains: So this applies to the gas stations, primarily, if they go and purchase their fuel? Or does this apply to consumers who purchase gasoline on or before that date?


Hon. B. Lekstrom: This refers to the consumer who goes out. For instance, Member, it would be yourself. I know that in my region we have people that buy great amounts of fuel, whether they're on the farm or wherever. So this is to prevent people from going out, buying the fuel today, and asking the…. It may be a dealer that's going to deliver that fuel by tanker truck to them, for instance. An individual can do that. But if they delivered it after the date that this tax came into force, they would be responsible to pay that tax.


H. Bains: So whether you are…. I guess it's the consumer that this two cents applies to. I guess the next question, the next one…. The "purchaser" in here, who is mentioned under 5(3), is the consumer. Is that correct?

[ Page 8239 ]

Hon. B. Lekstrom: The purchaser is the consumer, yes.


Section 5 approved.


On section 6.


H. Bains: This one is a bit confusing. Perhaps the minister could explain. It talks about:


"Subject to subsections (3) and (4)" — which we talked about earlier — "…if a purchaser takes delivery of gasoline or motive fuel inside the South Coast British Columbia transportation service region on or after the effective date under a fixed-price contract described in subsection (2) and pays to the South Coast British Columbia Transportation Authority tax on the purchase of the gasoline or motive fuel under section 4 (1) (d) (ii) or 10 (1) (d) (ii), as applicable, of the Motor Fuel Tax Act, the director, on application and on receipt of evidence satisfactory to the director, must pay to the purchaser, from the consolidated revenue fund, a refund of tax paid under…" this.


If the purchaser is the consumer, as we talked about earlier, how does this section apply to the customer or the consumer, and when do they get the refund?


[1800]

Hon. B. Lekstrom: This would be for…. I'll give you an example. I think it's probably the best way to try and answer the question you raised.


For myself, I'm a trucking contractor. I want to buy X thousand gallons of fuel. I enter a fixed-price contract prior to the first reading of this bill, which is important. I would then…. Because I have signed a fixed-price contract, if I received that fuel after the implementation of this tax, I could apply to the director for a refund.


It's an equity issue. So I've been in a contract, a fixed-price contract, prior to knowing that this tax would come into place. This actually just levels it out so that you're not impacted by that, because you've already entered into a contract prior to the introduction of this bill or the knowing of that tax coming into force.


Hopefully, I've done that justice.


H. Bains: Just because someone signed a fixed-price contract prior to the first reading, why does that allow that person to bypass this two cents? The fixed price is a fixed price of the gasoline or motor fuel that they are purchasing and no different than not signing a fixed price.


In that case, you would be paying the going rate plus two cents. In this case, they have signed a fixed price. Fixed price is with the seller, and the seller will be selling you with X cents per litre. Why is that person treated differently than someone who doesn't sign that fixed-price contract?


If you really think about it, the fixed price is for the fuel, not for the tax. So the question is: why would you give an out to that person who happened to sign the fixed-price contract versus a person who pays as the market dictates?


[1805]

Hon. B. Lekstrom: I think it goes back…. I'll try and give you an example again. For instance, you run a trucking company. You entered a fixed-price contract last week, prior to first reading of this bill coming in. You are, for the sake of it, using 100,000 gallons. You've entered that. You've based your price — the work that you're doing and your price — on the price of that fixed-price contract.


So what this section really does is bring certainty and stability. Then, of course, as you've read already, this is only one year following the implementation. That's what it's about, so that there is no, I guess, unknown. You can have the certainty. You can have the stability on a fixed-price contract. That's traditionally why people go to those.


H. Bains: But my question still remains. When you're talking about fixed-price contracts, you're not negotiating taxes. It is the price of the fuel that you would be paying for the coming year — two years, three years — and the amount of fuel you will be purchasing. But why are the seller and purchaser able to bypass paying taxes in that fixed-price contract?


The fixed-price contract is for the fuel. Any taxes that are on top of it are included in that fixed price. But the new taxes that come in — why are they given reprieve, compared to another contractor who is signing the same contract today, having to pay two cents? Just because somebody signed a week ago.… How do you escape tax? How could you negotiate, in the contract, future taxes that government may impose? That's the question. You are treating two contractors differently under this act, so what is the rationale behind it?


Hon. B. Lekstrom: Just so we're clear, the fixed price is an all-in price. It includes your taxes. So for a contract, why couldn't somebody then today go out…? It's because we've introduced the bill, and that would be tax avoidance.


If somebody has entered into a fixed-price contract…. Many people do, certainly. When you're looking at people that would consume large amounts of fuel, they would do that. It allows the certainty.


I'm trying to think of an example that I could relay to the member. For example, a month ago you went out. You are running your business. You're projecting what you need to do in the next 14 months, for example. You enter a fixed-price contract with your fuel supplier. You go about your business. That fixed price is a fixed price. If that fuel drops down, you're in a fixed-price contract. If it goes up, you're in a fixed-price contract. So you have that certainty and stability.


Maybe I'm not explaining it well, but it makes a great deal of sense. If you have a fixed-price contract prior to the implementation or the presentation of this bill for first reading, you have that. If you have your delivery, and one year following this…. Following the implementation
[ Page 8240 ]
of the two cents — I want to be clear on that — you have the ability to apply to get a refund. That actually is the certainty and the reasoning…. That's the reason people go into fixed-price contracts. It's for the certainty and stability. I don't know how much more I can explain that, Member.


H. Bains: I appreciate the attempt made by the minister to explain this, but to me, what the minister is saying here is that the seller and purchaser can negotiate taxes.


[1810]

They will say: "These are today's taxes. This is the fuel cost, these are today's taxes, and we are going to sign an agreement for the next year — two years, five years — guaranteeing that those will be the taxes."


I mean, they could guarantee the fuel price because those are the sellers. They may have some certainty, or they are taking a risk, but the taxes are the government initiative, and they will incorporate it in that fixed price. But how could they be given reprieve just because two parties sign an agreement that the future taxes will not apply to them?


For example, if the fuel taxes go down, are you going to require that the contractor, just because they signed the fixed price, will not be required to pay the lower taxes? They will maintain the higher taxes because they signed that agreement with a private entity? I mean, that's the confusion that I have.


I don't think it is a confusion. It is a legitimate and a logical explanation that we are looking for here. How could the two private parties sign an agreement negotiating future taxes? That's the question here. If you allow them to do that, then what you are saying is that because they signed their contract, for the remainder of the contract they must pay those taxes that the government has levied, although the taxes may have gone down.


Hon. B. Lekstrom: The fixed-price contract. The member seemed to infer that people would negotiate taxes on this. A fixed price is an all-in price. You're going to purchase from your neighbour. He's a fuel supplier. You negotiate an all-in price. You don't say: "I'm going to pay X for the fuel, and I'll pay X for the taxes." It's an all-in fixed price. So you negotiate that because you're looking for stability and certainty for your future.


You talked about a five-year contract. I know the member maybe was just using that as an example. There is only a one-year window here, as well, so I want to be clear on that. Under this bill, as well, there's a quantity that has to be included in that fixed price.


So again — I go back — the reason for a fixed-price contract is always stability and certainly. There are upsides and downsides to it. But I want to be very clear. This is not about negotiating taxes or not negotiating taxes. A fixed price is an all-in contract price.


H. Bains: That maybe is the case, but what I'm talking about is there's something wrong here. Fixed price — yes, I understand what fixed price means. But fixed price is gasoline price, and they pay taxes on that. So how could they negotiate? Just because they negotiate that they're not required to pay future taxes, they are allowed to do so? Two private entities saying: "We can negotiate today, and the future taxes will not apply to us. And I guarantee you that."


[1815]

We are treating two people differently — one that falls under that scenario; the other one who comes in and says: "Look, I'm negotiating a contract today, and I'll pay as the price comes, plus the taxes." So the two of them are treated differently. Just because they negotiated a fixed price, those two, how is the government saying that we will refund them because they have agreed not to pay taxes in the future? That's basically what we are saying.


Hon. B. Lekstrom: They are not agreeing not to pay taxes. I can't be any clearer than that. This is a fixed-price contract. People enter those all the time. I'm pretty sure the member has probably…. If he hasn't himself, he would know people that have. They look for certainty, and they look for stability in that fixed-price contract. So you do not negotiate: "I want to do this now, and I don't want to pay taxes in the future."


The reason we have the fixed-price contract prior to implementation of this bill is to avoid tax avoidance, so people don't rush out and enter into a fixed-price contract after we have presented first reading of this bill. That would be tax avoidance. That may be similar to what the member is referring to.


But if you went out last month, or your neighbour, and he's somebody that utilizes a great deal of fuel and went into a fixed-price contract…. Again, I want to be very clear. He does not…. At least, I don't know anybody like this. I'm quite confident the member — I won't speak for the member — wouldn't know somebody that talks to his fuel supplier and says: "I want to negotiate this price, and I want to negotiate it on the base price of fuel, and now I want to negotiate on the taxes you pay on that fuel." Whether it be Metro Vancouver taxes, fuel taxes or whatever, it is a fixed price. It's a dollar amount, based on a per-litre amount and, obviously, quantity.


The fixed price, I think, is a pretty good clause. It allows the people that have entered into a fixed-price contract prior to the implementation of this bill to maintain the certainty and stability that they entered into it for.


H. Bains: First of all, I think what we're saying here…. Although the minister goes around and tries to explain that that's not the case, it is reality that two private entities are negotiating a contract. Part of that contract lists the price, and part of that price is taxes. They are both agreeing that these taxes will remain for the remainder of the contract. That's what, in effect, is happening.

[ Page 8241 ]

That's what the minister is saying — that just because those two have agreed — fuel price plus the taxes for a coming number of years — that you are allowed to do that, and the future taxes will not apply to you. I think that's what the minister is saying. That's the end result.


I'm saying that it is treating two contractors differently, and that may not be the right thing to do. But if that's what it is, that's what it is.


The minister was going to refer to me a section where it talked about a maximum of one year. I tried to find it. Can you explain it to me, and please find for me where that is?


Hon. B. Lekstrom: Just to point to the section you were asking about, section 6(3)(b) talks about: "the purchaser receives delivery of the gasoline or motive fuel on or after the date that is one year after the effective date."


[1820]

H. Bains: Previous to that section, subsection (a) talked about: "No refund is to be paid under subsection (1) if (a) the purchaser is entitled, under the fixed-price contract, to recover the tax imposed under section 4...." What would be the situation there that they are able to recover this tax?


Hon. B. Lekstrom: This section would be…. It's certainly, I think, quite unique, but it has to be in here. We talked about fixed-price contracts. It goes back to what the member was talking about trying to….


If an individual negotiated something of a fixed-price contract, and for instance, they actually went down the road of saying, "If taxes increase, for example, you have to pay me back that tax, under that fixed-price contract" — similar to the discussion we've been having…. What this would mean is that if that was part of their fixed-price contract, they could not then apply to the director, as well, and double-dip and get it back from the Crown.


H. Bains: Now there's confusion. The purchaser enters into a fixed-price contract for X amount of litres or quantity, and it's for one year. What would be the circumstance — that was the question I had — that this purchaser now is in a position to recover the tax that is imposed on him? I mean, he is entitled to get the refund because there's a fixed-price contract. So he or she would have to apply for the refund that they will be paying, going forward, during the term of the contract, a maximum one year.


Under a previous section they could apply for a refund. So they would be refunded. But they will not be refunded, according to this section, if they are in a position to recover this tax.


It seems to me that whoever they're selling to further, they are recovering that extra two cents from the second purchaser. Now that tax will not be refunded to them because they already received it from the next person.


I mean, I'm just trying to figure out here: what would be the circumstances where they are in a position to recover the tax that is imposed under section 4?


[1825]

Hon. B. Lekstrom: Under a fixed-price contract, for example…. The individual goes and negotiates a fixed-price contract. In that contract he may put something in there — in a fixed price — one of the clauses possibly. He may say to the seller: "If taxes go up, you're going to have to eat that, because the reason I'm entering into a fixed-price contract is for the certainty and stability I need" — we'll say — "for 12 months out."


What this clause does is that, if that is in fact the case — part of a fixed-price contract, that that clause is in there — it would be the seller, then, who would be responsible to the purchaser, to make the purchaser whole under that. The purchaser could then not apply to the government for that refund because he will have paid the tax. 


[1830]

Again, it is a technical explanation. It's so there's no double-dipping — is what it is. So if they've negotiated a fixed-price contract, the seller of the fuel is responsible, if there's an increase in taxes, to make sure that that purchaser is made whole with the fixed price. That purchaser, then, can't only be made whole there by the seller; he cannot, then, apply to the director for a refund of this very tax that we are talking about here today.


[L. Reid in the chair.]


H. Bains: But according to the minister's previous explanation, the fixed price is a dollar amount. The purchaser now is in a position to purchase based on that fixed price for the remainder of the year or the next year, and they will be charged with this two cents, it seems to me. Under the section here, they will be charged two cents, but then they will apply to get a refund.


That is the only time they get a refund — if they are paying something. If they are not paying under the fixed price, the fixed price is a fixed price, and the purchase is on its way — you know, X number of litres purchased at that price. So why would they be in a position to get a refund?


I understood previously that they still will be charged two cents, but because they signed a fixed-price contract, they can apply for a refund, and the government will refund them. But now the minister is saying that they can also negotiate the two cents or future taxes, and the seller now applies for a refund and that therefore the purchaser isn't going to be charged two cents in any circumstances.


[1835]
[ Page 8242 ]

Hon. B. Lekstrom: I'll try one more time here. I see the member smiling over there. It really is so that the purchaser "is entitled, under the fixed-price contract, to recover the tax" — and it's important to read this — "imposed under section 4 (1) (d) (ii) or 10 (1) (d) (ii)."


This section prevents getting it back twice, in a sense. If the purchaser…. Again, I'm trying to think of an example here, because this is a technical explanation once again.


You can't have it so that you have the seller, who has entered into a fixed-price contract with the purchaser, receiving a rebate, for example — we'll call it that — as well as the purchaser. There are two things going on here.


So what it does is, I think, make sure that people are looked after in the whole. You can't apply to the director if your fixed-price contract — and there's a clause that's built into it — has dealt with that, if there is an alteration in the price, in the fixed price. Because as I said, the fixed price…. At least I'm not aware that people are going out and negotiating the fixed price: "Here's what I'm paying for that; here's what I'll pay for taxes." You don't do that in a fixed-price contract.


What you do is you enter the fixed price, for stability and certainty. You then will enter into that contract. If things change, you don't want the uncertainty. That's why you've gone to the fixed price. You do then…. Okay, on this, for instance, a purchaser receives the fuel after April of next year. They'll pay the two cents. They'll apply to the director to get that reimbursed, to be made whole. That can't be done twice.


H. Bains: I'm trying to read two sections together. One is 6(1), where the refund is talked about, by the purchaser. Because they enter into a fixed-price contract, and it talked about how, under 4(1), "on application and on receipt of evidence satisfactory to the director, must pay to the purchaser, from the consolidated revenue fund, a refund of tax paid."


So it seems to me, if I read this as you explained it to me earlier, that the fixed-price contract is entered into, and now, because two cents comes in during the term of the contract, the purchaser will be required to pay two cents. But because there's a fixed-price contract provision in here, then that purchaser will apply to the director with the receipt showing that I paid two cents and get a refund. That's the way I read it — 6(1).


Then you move on to (3), where it says: "No refund is to be paid under subsection (1) if (a) the purchaser is entitled, under the fixed-price contract, to recover the tax imposed under section 4 (1)...." It seems to me that it makes sense if, the way the GST used to work, a contractor purchased product, paid GST, then they sell to the next purchaser and, because the final purchaser or the consumer is paying HST or GST, they are not collecting from both sides. So this person is recovering what he already paid because they are selling that product further.


That would make sense here if that was the case. But the minister is saying that isn't the case — that there's a contractor; that they will purchase X amount of gasoline; they pay taxes, the two cents I'm talking about; and get that recovered or get it refunded because there's a fixed price. But because that purchaser is selling to the next person and charging that person two cents, and that person now is recovering that two cents, that's when they are not entitled.


But the minister is saying that is not the case. So it is still, according to the minister, between the first seller and this purchaser, that they are somehow in a position to recover that two cents. I just don't understand what will be the scenario in that situation, where this purchaser is in a position to recover from the seller. That is just the.… It just does not make sense here, unless there's another explanation. But if that's the explanation, Minister, you have, then that's the explanation, unless you have something different.


[1840]

Hon. B. Lekstrom: It is always enjoyable discussing this with my critic. I'll try one more time here, because it is an interesting discussion, a technical one.


We're dealing with a single seller and a single purchaser. What we want to avoid with this clause is this. Should they have entered into a fixed-price contract that would have a clause — and again, I can't think of many that would — that would say, "If the tax increases, I will make you whole as the seller," what this clause does is to then prevent that purchaser from also applying to the director to get it back again so that what it would mean is that they would be getting it back twice. We're trying to avoid this.


It's a good clause — difficult to explain, without question. If I had gone to law school, I might be in a better position to do that. But it is written in such a way that that's what it is for.


H. Bains: Let me put this in a different scenario. If there is that contract — we're still talking about that single contractor, who we call "purchaser" — are they allowed under this to sell that fuel to a third party and not collect the two cents?


Hon. B. Lekstrom: No, the purchaser is the end user. By definition you cannot be a purchaser and the seller.


H. Bains: The next one, subsection (4), talks about: "No refund is to be paid under subsection (1) of this section in respect of a quantity of gasoline or motive fuel tax that exceeds the quantity specified in the fixed-price contract." It is straightforward, but how do you monitor that?

[ Page 8243 ]

Hon. B. Lekstrom: If an individual is applying for that refund, they would have to supply documentation. In this case we're talking about the fixed-price contract, which would define the quantity.


Sections 6 and 7 approved.


Title approved.


Hon. B. Lekstrom: I would move that the committee rise and report the bill complete without amendment.


Motion approved.


The committee rose at 6:45 p.m.


The House resumed; Mr. Speaker in the chair.


Report and
Third Reading of Bills


Bill 11 — GREATER VANCOUVER
TRANSIT ENHANCEMENT ACT


Bill 11, Greater Vancouver Transit Enhancement Act, reported complete without amendment, read a third time and passed.


Hon. M. Polak moved adjournment of the House.


Motion approved.


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


The House adjourned at 6:46 p.m.

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