Orders of the Day

Hon. M. Farnworth: In this chamber, I call committee stage on Bill 22, Civil Resolution Tribunal Amendment Act, and in Committee A, I call continued debate on the Ministry of Citizens’ Services. At the same time, after that, I will also call the estimates for the Ministry of Children and Family.

[2:50 p.m.]

Tabling Documents

Mr. Speaker: Hon. Members, I have the honour to present a report intituled Report of the Chief Electoral Officer on Recommendations for Legislative Change, May 2018, from the Chief Electoral Officer.

[2:55 p.m.]

Committee of the Whole House

BILL 22 — CIVIL RESOLUTION
TRIBUNAL AMENDMENT ACT, 2018

(continued)

The House in Committee of the Whole (Section B) on Bill 22; R. Chouhan in the chair.

The committee met at 2:57 p.m.

On section 19 (continued).

M. Lee: I just wanted to pick up from where we last left off on section 19. The Attorney General indicated that in respect of time periods prescribed by the rules, there currently aren’t any, and that the purpose of this amendment would be to reflect that.

Looking back at his response, the response ended with reflecting the law would be better to do so than to the practice itself. I just wanted to ask: what is the current practice? I think he indicated 60 to 90 days, but if we could just revisit that in terms of the current practice on time periods.

Hon. D. Eby: There’s a certain amount of discretion that is given to the CRT in resolving disputes on timelines. These are obviously amendments to permit them to make determinations in relation to car accidents and the nature of injuries and the nature of awards under $50,000, or matters under $50,000 related to car accidents.

With respect to the text that’s here and the intention around that, the CRT has a practice of not forcing someone who is not ready to go to adjudication to go to adjudication. For example, where a person’s injuries aren’t adequately resolved or stabilized in order for there to be a determination, or where a person needs more time to gather evidence, they wouldn’t be forced to adjudication. At the same time, though, the CRT wouldn’t allow someone to delay a proceeding where there’s no reasonable basis for doing so.

[3:00 p.m.]

I’m reluctant to provide the member with absolute time. Certainly, 60 to 90 days are reasonable expectations under current disputes, and it will be much, much faster than the current B.C. Supreme Court process. There is a possibility that at some point, the tribunal might establish, by rules…. Once they have some matters under their belt and they have a sense about the process for these kinds of things, they might establish a rule requiring final decisions in a certain time period. That’s the intent behind the amendment.

I do note that the member, in a previous exchange, made requests for data around how the tribunal responds to somebody saying that they would like to have a representative with them in attending the hearing. There are two types of representatives that individuals might request to have with them at a hearing. One is a lawyer, and the other is a lay advocate or a non-lawyer. So they can make an application to the tribunal, in small claims or in strata, to have someone represent them or to appear with them at the hearing.

For small claims, to give the member an idea, there were 28 requests for a lawyer. These are matters under $5,000. It was approved 11 times, which is a 39 percent approval rating. For strata, there were 120 requests for lawyers, and 45 were allowed. That’s a 38 percent approval rating. For non-lawyer advocates, there were 140 requests for advocates in small claims matters, permitted 106 times. That’s a 76 percent approval rating. For strata matters, 125 requests for lay advocates, approved 69 times. That’s a 55 percent approval.

Over the whole of the groups, advocates or lawyers were permitted 70 percent of the time in small claims matters when they were requested and 47 percent of the time in strata matters when they were requested. When you combine everything together, 56 percent of the time — whether it was strata or small claims, lawyer or not — an application for an advocate was approved by the tribunal.

I hope that assists the member. I’m glad to table this document that I’m reading from so the member has a table to refer to if that’s helpful to him.

M. Lee: Thank you for that information. I appreciate that. If we could just go back to that particular section of the bill — section 16, proposed new section 20.1.

I take it, just to clarify with this information being tabled, that under the provisions of the current act, under section 20, the difference is for accident claims — that a party may as a right be represented by a lawyer in a tribunal proceeding. It means that there wouldn’t be a situation where, as the Attorney General just categorized, the number of requests versus the number allowed….

To clarify, in each case where a claimant is appearing before a CRT, that individual has the right to have legal representation.

Hon. D. Eby: That is correct.

M. Lee: So back to section 19, then. In terms of the time periods, then…. I think, given the Attorney General’s response, I’d just like to clarify that the question would be: is it foreseen at this time, with the different natures of claims that might be considered by the CRT — strata disputes versus cooperative association versus accident claims — that the time periods that might be considered by the tribunal might be different depending on the nature of the claim?

Hon. D. Eby: Yes. That’s correct.

M. Lee: In the area of accident claims, then. Appreciating, again, that this is a new area for the CRT if they establish themselves with this new jurisdiction, how will that work in terms of the determination where a claimant is not yet prepared to go forward with the tribunal?

[3:05 p.m.]

At some point in time, what will happen with that claimant in terms of how the tribunal exercises its authority over that claimant in terms of compelling that claimant, ultimately, to initiate or start that process?

Hon. D. Eby: We don’t believe there’s any authority for the tribunal to compel someone into this process. This is around if the person has a dispute with an award that is made by an adjudicator or a determination that’s made by the adjudicator. So the person drives that process. They appear at the tribunal. They make the application. The tribunal doesn’t compel people to participate in this process.

M. Lee: For, in practice, what might be a 60- or a 90-day period, how does this play with the 12-month…? When we look at the definition of “minor injury” under Bill 20, how will this play or interplay with the 12-month test in terms of determining whether there’s been a serious impairment, for example, that occurs and that condition continues to occur beyond 12 months?

Hon. D. Eby: We might be able to clear up some confusion that some of the members mentioned in second reading speeches, which was around that maybe you’d have to go to the tribunal in 90 days.

That is simply not the case. If you believed you had a serious impairment and disputed, or that you were seriously impaired in your daily activities, and you believed that that was going to last for longer than a year, you just wouldn’t go to the tribunal until after the year had passed. There’s a two-year limitation period for going to the tribunal, so you would have between month 12 and month 24 to bring your application.

M. Lee: I guess that suggests that the claimant would have the understanding as to whether they have a serious impairment. I appreciate that that will be fully canvassed under Bill 20.

Again, I’m just interested to know if there’s any situation where it turns out that the condition continues beyond 12 months — when an individual is in the course of being unrepresented in front of the CRT and doesn’t fully appreciate the severity of his or her condition, in situations where he or she may not have legal representation because they’re trying to resolve something that is immediate and wanting to get a quick decision.

Knowing that the CRT is the inertia or the momentum behind decision-making may well be the case, is there any potential prejudice for a claimant in this kind of situation in the interaction with that 12-month period?

[3:10 p.m.]

Hon. D. Eby: In the scenario that the member outlines, the person…. There are two scenarios, I guess. One is where the person shows up with apparently minor injuries and then things get worse unexpectedly. Maybe they have somehow taken some steps that limit their rights.

That same scenario exists under the current system. You might sign a settlement agreement. You might enter into an arrangement with respect to compensation for an injury, and it may not be a full understanding of where the injury is going.

The risk is just as present under this system as under that system, but there are some arguable improvements in the system in that if you go to B.C. Supreme Court, it’s not the judge’s job to try to figure out whether you’ve shown up at the right time or whether you have a serious impairment or not, except on the evidence that you bring forward.

In the CRT, the tribunal members will be actively involved in ensuring that the individuals who appear in front of them are aware of what their rights are, of what the system is and what the application is about. That will be part of the training, and that is part of the job of the tribunal, because it’s assumed that most people are attending the tribunal without representation, although they have every right to bring a lawyer with them if they wish.

The other scenario — the other possibility of a person who appears to have a more minor injury and it gets worse over time — would assume that their doctor has also missed it, because people will be attending their own family physicians, who will be providing them with information about their injuries. That information is the evidence in front of the tribunal. There is a risk of a doctor missing an injury, but that risk also exists under the current system.

The other scenario is where someone is seriously impaired, where they’re not able to work, where they’re not able to go to school. They’re assuming, I guess, in the scenario, that it’s going to get better before the 12 months are up, and they’re rushing into the tribunal to reach a final resolution around their injury. It’s hard to imagine a scenario where that would happen, but if it did, there’s an on-line solution explorer that’s part of completing the documentation for the claim so that it would be quickly apparent to them that there may be an issue here that they need to address.

The tribunal member would be assisting them in understanding that as well. It would be part of the considerations. It’s difficult to imagine that scenario manifesting any differently here — that someone would be rushing off to finally resolve a complaint when it’s not apparent when it’s going to actually resolve and what they’re going to need in terms of support and compensation, and so on.

The other big difference — and we are bleeding a little bit into the other bill — is that during this entire process, this person would be having their out-of-pocket expenses covered by ICBC for various therapeutic responses, and so on, as they’re incurred, so the person would have the benefit of full coverage for their injury rehabilitation. Certainly, our hope is that people will be getting better over time, but it wouldn’t necessarily be assumed so, even if they did rush off and file a CRT application.

Sections 19 to 21 inclusive approved.

On section 22.

M. Lee: On section 22, I just would ask the Attorney General to clarify the situations under which…. In the amendment to 56.1, to include section (2.1), the wording where “if the party has defaulted in the tribunal….” I’m curious about the framing of those words. I know default, which we’ll get into in a moment. But the actual drafting of that — I just wanted to clarify the meaning as to why it’s drafted that way.

[3:15 p.m.]

Hon. D. Eby: Default is defined in section 2(b) of the act. It is defined as where “a party fails to comply with section 7….” That section relates to giving and responding to initiating notice. So they get the notice, and they just don’t respond, or subsection (b) of 2(b), if section 36 or section 52 applies.

Section 36 is “referral to the tribunal for non-compliance” and section 52 is “if party does not participate.” If someone’s refusing to participate in the process, or they’re not complying with tribunal orders, then that would be considered a default as well.

In the event of a default, this amendment restricts the ability of a party in terms of the actions they may take at the tribunal until the default is set aside by the tribunal. In particular, they may not make a notice of objection as a tool to encourage compliance with either a previous order of the tribunal or to encourage participation or to respond to an initiating notice, so that default needs to be dealt with first.

M. Lee: Depending on the nature of the default…. If the Attorney General can just outline what areas that typically a claimant might be in default in, in front of the tribunal.

Hon. D. Eby: The definition of “default” captures the areas that the tribunal has identified. That’s in section 2(b). In particular, it’s in giving or responding to initiating notice, the scenario where there are defaults by definition.

Section 36 is where there’s a non-compliance with the tribunal order, and section 52 is where a party does not, or refuses to, participate in the process.

These are not just examples of defaults; these are literally the definition of default in section 2(b). Other matters are not considered defaults if they’re not included in the definition.

Section 22 approved.

On section 23.

M. Lee: In terms of the repealing of this particular provision, would the Attorney General please explain the intent for such a repeal?

Hon. D. Eby: This is closely linked to the section that we just canvassed with the member. Because the previous section no longer allows a notice of objection to be filed if someone has defaulted, you don’t any longer need a mandatory security deposit.

Previously you were allowed to file a notice of objection even if you were in default, but you were only allowed to do it if you paid a deposit. Because the previous amendment that just passed no longer permits that filing of the notice of objection if you’re in default, you don’t need the security deposit as a knock-on provision.

Section 23 approved.

On section 24.

M. Lee: In terms of repealing division 6 of part 5, this would…. Just again, with the Attorney General, if he could clarify the rationale for this proposed amendment, which would delete the right of appeal for strata property final decisions.

Hon. D. Eby: This relates to appeal provisions for strata property claims — the section that’s being struck here. What it did was set out a two-step process for appealing a decision of the tribunal — how you get to Supreme Court.

Generally, the feedback we received from the civil resolution tribunal about feedback they received from the public about this was that this process was inefficient, it wasn’t very well understood, it was confusing to people, but everybody understood how judicial review worked.

[3:20 p.m.]

To avoid the inefficiency that this section unintentionally created and be consistent with review procedures set out for every other type of case under the civil review tribunal act, this was repealed, and it’ll just go ahead as judicial review, just like all the other review procedures set out in all other cases under the act. That’s why this section’s being repealed.

M. Lee: Just to clarify though, the standard of appeal under this section is different from the standard of appeal under the coming section that we’ll review in a moment. Is that not correct?

Hon. D. Eby: The member is correct that in the bill, as a whole, there is a higher standard on judicial review established by the bill. But that is not done by this section. It’s done by another section that talks about this tribunal being an expert tribunal. We’ll get to that.

What this section does is it says you don’t need to go through this process to apply for judicial review. You can just go ahead and apply for judicial review. So it’s simplifying matters to get to the Supreme Court for a judicial review. The reason for that was just simply to simplify matters and avoid confusion that was created unintentionally by this section.

M. Lee: Thank you for that. I just wonder in saying that, though, whether the outline of how to go about appealing a CRT decision to the Supreme Court…. Is that not needed to be spelled out? Or is that spelled out somewhere else in the act or proposed regulations?

Hon. D. Eby: Applications for judicial review from these matters and from other administrative tribunals generally proceed under the Judicial Review Procedure Act and the B.C. Supreme Court rules that apply to judicial reviews. So it’s not set out in this act.

Section 24 approved.

On section 25.

M. Lee: In terms of the proposed addition of 5.1, judicial review, the criteria that are set out would basically incorporate…. Perhaps I could just clarify, first of all, that the criteria for judicial review will be spelled out under the Administrative Tribunals Act, under sections 58 and 59.

I’d like the Attorney General to walk us through the standard that is set out in, if I’m correct on that, the two sections that would apply here, depending on the nature of the claim that’s being reviewed.

I appreciate that under 56.7(3), in effect, the accident claim under 56.7(2) would be looking at the standards set out in section 59 of the Administrative Tribunals Act. If he could just walk us through that, then we can just probe that a little more here.

[3:25 p.m.]

Hon. D. Eby: Section 56.7, which is part of section 25, sets out the standard of review on appeals from the tribunal. Subsection (1) says the tribunal must be considered to be an expert tribunal, and section 58(2) and (3) of the Administrative Tribunals Act applies, in relation to judicial review of the final decision of the tribunal for a claim in the exclusive jurisdiction of the tribunal or a claim in respect of which the tribunal is considered to have specialized expertise.

Subsection 58(2) of the Administrative Tribunals Act deals with judicial reviews relating to expert tribunals. That sets out matters — sub (a) through (c) — that talk about a finding of fact or law as an exercise of discretion by the tribunal. Sub (b) talks about the application of common law rules of natural justice and procedural fairness. Subsection (c) talks about any other matters. It’s kind of a catch-all. So it incorporates subsections 58(2) and (3). As the member might expect, this deals with, for example, findings of facts and law and that kind of thing.

That’s the higher standard of review. There’s a carve-out here, under sub 56.7(2) that talks about attributing liability in an accident claim, and this applies a lower standard of review. That is that the courts are given more discretion, because courts are recognized as having expertise in this area around attributing liability in an accident claim. So it’s a carve-out to recognize that in that area, the courts have more discretion in their review of the tribunal’s decision.

[3:30 p.m.]

Then the third, which is subsection (3), talks about section 59 of the same Administrative Tribunals Act — the standard of review without privative clause. It applies to an application for judicial review of a final decision of the tribunal other than a claim to which subsection (1) of the section applies. This, simplified, is a catch-all of matters that are not captured in subsection (1) to ensure that nothing remains uncovered by the standard of review section.

I’m just going to check in with my staff and make sure I didn’t misspeak on any points before the member hops up. They’re nodding. It’s a complicated area, so I wanted to make sure I was right.

M. Lee: Thank you for walking me through that. Just to come back to sub 56.7(2), that would clarify that sub (1) does not apply where it relates to liability. In which case, what standard does apply?

Hon. D. Eby: What happens is that because it’s carved out, it goes into the catch-all, the Administrative Tribunals Act, section 59, which is what the standard of review should be where there’s no prohibitive clause. The standard of review, according to sub 59(1), “to be applied to a decision of tribunal is correctness,” in that scenario, “for all questions except those respecting the exercise of discretion, findings of fact and the application of common law rules of natural justices and procedural fairness.” There are a number of other subsections where it talks about findings of fact, discretionary decisions, a decision exercised arbitrarily or in bad faith, for an improper purpose, irrelevant factors, and so on.

[L. Reid in the chair.]

I think the answer the member is seeking here is contained in subsection (1) — correctness — but you need to read the whole of section 59 to really have a sense about what the full standard of review is for those matters.

M. Lee: If I could just first walk back up to sub 56.7(1). For the purpose of involving the standards review, I first wanted to confirm that the way that this provision is drafted, to engage on that standard the test must be that the tribunal must be considered to be an expert tribunal. I just wanted the Attorney General to confirm that.

We discussed previously, in earlier sections of this bill, the ways in which this tribunal would be viewed to both be an expert tribunal and, secondly, under sub 56.7(1)(b), considered to have specialized expertise. Again, we’ve talked about what kinds of individuals would be serving on the tribunal which would fit that. I just wanted the Attorney General to confirm, for the purpose of this section, that the tribunal will reach that standard.

Hon. D. Eby: Certainly tribunal members will receive extensive training. They’ll be selected on the basis of having a background that’s consistent with the ability to be trained up on these particular questions that will be going in front of them.

There are two parts, I think, to the member’s question. One is the legal question of: what is the standard of review? When the proposed law, the bill here, says that the tribunal must be considered to be an expert tribunal, it’s directing a court, on review, about what the standard of review should be. That incorporates with it a whole bunch behind that legal terminology about how the court looks at the decision that was made by the tribunal, what standard it’s held to, and so on.

The member is also asking a practical question about: well, can we be certain that the tribunal will be experts and that this standard is appropriate? I can tell the member that the members will be hired and trained in accordance with ensuring that they are expert in resolving these matters, but not only that. They’re going to be hearing these matters day in and day out, over and over, and they will be quite expert in resolving these matters.

[3:35 p.m.]

Certainly, in a very short period of time, they will hear many more of these types of disputes than other decision-makers might get to hear at other levels, under other systems. This will be a specialized tribunal that hears matters of: is it a minor injury or not? And in accident disputes under $50,000, the tribunal members will be quite expert in that in a very short period of time, given the volume of cases.

M. Lee: Just one more question before we get to sub (2). In terms of exclusive jurisdiction, that wording in sub 56.7(1)(a) — I wanted just again go through the meaning of those words in the context of this provision. Particularly, we’re talking about exclusive jurisdiction in terms of the types of claims that’ll be put forward in front of the tribunal, I presume?

Secondly, in terms of the limits on dollar amounts on minor injury and the overall limit of $50,000, what does this exclusive jurisdiction…? How far does it reach in terms of how it considers all of the limits around the tribunal’s jurisdiction?

Hon. D. Eby: Exclusive jurisdiction issues. There are two exclusive areas of jurisdiction. One is entitlement to accident benefits, and the other is determination of whether an injury is a minor injury according to the legislation that’s also in front of the House. Those are the exclusive areas of jurisdiction for the tribunal. Those are the two areas. And that’s it.

Damages for accident claims under $50,000 is not exclusive, because you can make an application to the court. We went through this with the member earlier. You can make an application that in the interest of justice and fairness and all the circumstances and so on, according to the criteria that are set out, the matter could go ahead in the B.C. Supreme Court anyway.

We’ve tried to send signals that the preference, certainly from a policy perspective, is that matters go ahead in this more efficient tribunal, for a bunch of reasons that I’ve talked about many, many times. But it’s not exclusive jurisdiction around disputes under $50,000.

Liability and accident claims, similarly, is not exclusive jurisdiction. It’s shared jurisdiction with the Supreme Court, if you can cross those hurdles that were set out ensuring that only those disputes where justice and fairness require that it goes to the B.C. Supreme Court.

M. Lee: I suppose in terms of walking through the justice and fairness at the outset of this process, then, a claimant would need to have legal counsel to help navigate that determination. That’s something that I think will need to be considered here, in terms of….

The concern, I think, will be the standard of review for these claims and the need to ensure that claimants have the right level of legal input and legal counsel on that. I’d just invite the Attorney General for some comment on that concern.

[3:40 p.m.]

Hon. D. Eby: Just for clarity, there is no restriction on attending either the CRT or B.C. Supreme Court anywhere in the legislation on these disputes related to motor vehicle matters under or over $50,000, catastrophic or minor injury. There’s no restriction on counsel.

Odds are good that if you are in B.C. Supreme Court, you are there with a lawyer because it is a complicated process. It’s difficult to represent yourself, but you might be there appearing on your own. It’s a bit speculative, that piece. I’m trying to get at what the member is asking about. There are a couple of scenarios.

One is where you believe your claim is valued at less than $50,000. The evidence appears to suggest that the claim is valued at less than $50,000, and you’re in B.C. Supreme Court. If you still want the court to determine that, even though everything suggests that it should be in front of the CRT, you can try to convince the court that justice and fairness ensure that you get to continue, even though you are below the $50,000 threshold. If you are over the $50,000 threshold — the medical evidence and the material damage evidence and whatever it is say you are over $50,000 — then there is nothing to move you out of the B.C. Supreme Court process. There is no legal test there, other than what the value of the anticipated damage is here.

I’m hopeful that that addresses the member’s question, although I’m not sure it does.

M. Lee: If I could just go to 56.7(2), with respect to a comment earlier that courts may be in a better position to assess liability, would that suggest, though, that under the $50,000 limit, the CRT will be in a lesser position to do so than a court?

Hon. D. Eby: The intent in the carve-out was to avoid a circumstance where the courts head down a certain path with respect to liability on other tort claims and the civil resolution tribunal issues a number of decisions that head down another direction around liability and then there’s a divergence in the understanding of the two bodies of when liability is incurred. By lowering the judicial review standard on reviews relating to liability, we’re aiming to prevent that outcome, where the decisions around liability between the court and the civil resolution tribunal would vary.

We would like consistency between those decisions in terms of apportioning liability, and we think that the lower review standard will enable that.

Sections 25 and 26 approved.

On section 27.

[3:45 p.m.]

M. Lee: I just wanted to ask the Attorney General: in terms of the prescribed class that’s referred to in sub-subsection 58.2(1)(b)…. In the absence of that being defined or being in the original act, could the Attorney General please describe or explain what that prescribed class may well be?

Hon. D. Eby: As an example, we believe that this would be required for cooperative associations.

M. Lee: Just on 27. Will this be defined then by regulation?

Hon. D. Eby: The member is correct. This would be prescribed by regulation. I can tell the member that in terms of what is being contemplated right now for any regulation, cooperative associations are an example. I’m not aware of other examples at this stage, but there may be others eventually, so it was proposed to do this by regulation.

Sections 27 to 29 inclusive approved.

On section 30.

M. Lee: On section 30, I just wanted to refer back to section 93 of the current act and ask the Attorney General just to walk through what seems to be a broader expansion of the regulatory powers by making this amendment — if he could just take us through those changes.

[3:50 p.m.]

Hon. D. Eby: I’m looking at subsection 93(2), for the member to follow along.

Subsection (2)(a), “respecting any matter for which the tribunal may make rules….” This is a regulation-making power to ensure that there’s not a circumstance where the tribunal might make a rule, where they didn’t have the authority to do that under the act. The Lieutenant-Governor-in-Counsel would not have the ability to make a regulation relating to that. It would be an awkward situation where the tribunal could make a rule but the cabinet couldn’t make a regulation relating to that.

Subsection (b) is unchanged. Subsection (c) is struck because it’s now captured in subsection 113(b). Subsection (d) is changed to reflect a new section number. Subsection (e), which was previously not in force, is replaced with a section relating to accidents — accident claims. Obviously, one of the driving forces behind this legislative change was around accident claim definitions. Subsection (f) is captured by sub 113(b) as well. Subsection (g) — we have a whole new judicial review section that we’ve been through.

Subsection (h) is struck, and we’ve changed it so that there are not these different formulas anymore. The new limitation period is contained elsewhere. In relation to subsection (i), 14.1 has changed to section 16.4, and the new provision, subsection (g), is sufficient to provide any regulation-making power that’s needed here. Subsection (j) has moved to various places through the act, for strata and small claims and accident claims, which could use subsection (g) which I’ll go over in a sec.

Subsection (g) is respecting any other matter for which regulations are contemplated by this act to ensure that we haven’t missed a section where regulations are needed but there’s not a regulation-making power. Subsection (f), working backwards, is prescribing fees to be paid for anything done by the tribunal. And subsection (k) is changed to subsection (c), which talks about deposits for claims previously adjudicated.

I hope that assists the member. There are obviously a lot of changes in 93(2) there.

M. Lee: Given the nature and the scope of this amended section dealing with regulatory powers, when that was presented to the legislative review committee, was there any particular rating as to whether there’d be a high or a medium or a low probability of any challenge to this provision?

Hon. D. Eby: These are standard regulation-making powers. Subsection (g), although it appears to be a significant broadening of regulation-making power, in fact requires that somewhere in the act it says that it’s prescribed. It requires some indication that there was a matter for which regulations were contemplated. It couldn’t just be regulations made out of whole cloth concerning any matter whatsoever. So it is a restricted provision.

I can say, though, that certainly there are interested parties in the existing system, and they’re well-resourced with lawyers. The member should expect that there will be challenges — probably not to these particular provisions but challenges to the civil resolution tribunal authority or jurisdiction or to other bills related to the reform around ICBC.

[3:55 p.m.]

We do expect those challenges. In preparing legislation, one of the pieces we do is we make sure that we’re operating within the rule of law, the constitution in Canada and the laws in British Columbia. I can advise the member that certainly I wouldn’t present anything in this House that I felt would not stand up to challenges in the court and that didn’t reflect good policy around access to justice and public policy related to resolving claims like these.

M. Lee: In terms of the provisions, specifically new 93.2(a) and (g), in terms of the breadth of those possibilities of what might be put through as a new regulation for the tribunal, can the Attorney General share with this House any expectations around what future changes to the tribunal’s rules might be affected through this particular provision?

Hon. D. Eby: The most obvious one we can think of, given the new jurisdiction of the tribunal, would be in relation to experts. The tribunal might require a joint expert or might limit the number of experts or would permit the admission of a doctor’s medical records without the doctor having to attend personally. That was kind of our best effort here to try to anticipate some of the obvious areas where there may be new rules under this power.

Sections 30 and 31 approved.

On section 32.

M. Lee: Section 32 is the biggest part of this bill in terms of introducing jurisdiction across the board. In terms of section 113(b), again this refers to a class of claim to be prescribed by regulation. Could I ask what the expectation is around that class of claims?

[4:00 p.m.]

Hon. D. Eby: Currently there is no class of claims that we anticipate prescribing excluding from the jurisdiction of the tribunal. This is a regulation-making power that anticipates that there might be some sort of issue that comes up with a class of claims that, for some reason, is determined that it’s more appropriate to go directly to B.C. Supreme Court instead of being at the tribunal. In which case, this provision gives the ability to prescribe what that class of cases is and send it off to court instead of having it appear in front of the tribunal. But there is no class of cases that are currently anticipated.

M. Lee: Just in terms of section 116 — again, this section relates to what we’ve been discussing at committee stage on specialized expertise. Again, this section buttresses that statement. If I could ask the Attorney General, in terms of how the tribunal members will continue to meet this requirement under section 116.

Hon. D. Eby: There are two possible areas where the member’s asking the question. One is around what is called the privative clause in administrative law, which is a signal to a court around deference — that the tribunal should receive deference from the court when appeals take place, when it’s about judicial review. This is very common language around a privative clause — subsection (2) — a signal to the court that as a policy matter, we want them to give deference to the decision by the CRT.

I feel like, though, the member is actually asking a more practical question about: how do we actually know that the tribunal members will be experts? The CRT members here, in relation to the ICBC claims, are going to hear two areas of exclusive jurisdiction. They’re going to hear entitlement, accident benefits and definition of minor injury, and then they’re going to hear a lot of claims under $50,000. That’s all they’re going to hear. That’s all they’re going to deal with.

They are going to be highly specialized in these areas. They will know the law inside and out. That’s part of, in addition to the training and the hiring process that the CRT will engage in, how we know the CRT will be quite expert in these areas.

It’s different than B.C. Supreme Court. A B.C. Supreme Court judge can hear any number of different matters — adoption, appeals, bankruptcy, bodily injury, contracts, corporate law, criminal matters, debt collection, medical malpractice, negligence, societies. The structure of the court and the hearing process is quite different, because there’s a wide area that a judge in B.C. Supreme Court, the justice in B.C. Supreme Court, may have to hear. That usually involves lawyers and providing information to the court about the state of the case law and state of law and the evidence that’s in front of the court, and so on.

In the tribunal, it’s set up so that people can appear without counsel. They can appear self-represented, if they choose to do that. Although as a right, they can bring a lawyer to a tribunal. The tribunal member is more involved in the process, around ensuring that there’s a fair outcome.

It’s a totally different structure than B.C. Supreme Court, and it necessitates and enables the possibility for CRT members to become quite expert in this specialized area that they’re doing day in and day out, over and over.

[4:05 p.m.]

M. Lee: I do appreciate…. The Attorney General is correct. I am trying to address the question in both ways. On the practical side, if we can just take this opportunity one more time….

In terms of how tribunal members will be selected, again, that will presumably be governed under the merit-based process that’s in the Administrative Tribunals Act. If the Attorney General can just describe the selection process itself for the tribunal members, in the guise of understanding “specialized expertise.”

Hon. D. Eby: The relevant section of the Civil Resolution Tribunal Act is part 8, which talks about how tribunal membership and administration is established. Section 67 governs the appointment of a chair. Section 68 governs how vice-chairs and other members of the tribunal are appointed. Section 69 governs how temporary tribunal members are appointed. Section 70 relates to acting chair; 71, acting chair if there’s been no chair appointed; and 73 deals with resignation.

There’s a whole regime that’s set out around how tribunal members — specifically section 68, tribunal members themselves — are hired and the process that is required to staff up the tribunal. I can advise the member that there are already some tribunal members with personal injury experience, but obviously, there would be some significant hiring that would have to take place if and when this bill passes, combined with additional legislation that’s in front of the House.

M. Lee: I appreciate that. In terms of subsection 68(3) of the current act, the terms of the appointments are stated to be at least two years and not more than four years. Is there an expectation in terms of how tribunal members with personal injury law experience will be appointed to this tribunal in terms of length of service?

Hon. D. Eby: Subsection 68(3) says: “The term of office for the initial appointment of a tribunal member…must be at least 2 years and not more than 4 years.” There’s also an option under subsection (4) for the Lieutenant-Governor-in-Council to reappoint a tribunal member after a merit-based process for an additional term of not more than five years. Appointments can be full-time or part-time. The two sections, read together, create the possibility of a term up to nine years.

M. Lee: Just back to sub 68(1), in terms of the merit-based process itself, I’d ask if the Attorney General can just outline what that process would look like in the context of this tribunal for the kind of expertise that’s going to be required for accident claims.

[4:10 p.m.]

Hon. D. Eby: The merit-based process is set out by the chair, and it’s engaged in by the chair of the tribunal around determining what skill sets are required for the proper functioning of the tribunal within the legislative authority of the tribunal.

M. Lee: In terms of considerations around the tribunal members themselves, as to whether they’ve come from either former lawyers at ICBC or other members of the bar, are there any considerations around bias?

Hon. D. Eby: I’m going to take a step back and provide some big-picture independence safeguards that are in place to ensure that the CRT is able to independently adjudicate matters, which I think is maybe at the heart of the member’s question.

The members are appointed on a merit-based process. They are appointed based on their qualifications. It’s a process set up by the chair, under sections 67 and 68 of the Civil Resolution Tribunal Act. They can only be terminated for cause, under section 74, once they’re appointed for set terms. Section 74 sets out what that cause restriction is.

Section 75 establishes remuneration of members, which is “in accordance with the general directives of the Treasury Board,” and it applies to members of all B.C. tribunals.

The act itself specifically requires that members of tribunals “faithfully, honestly and impartially perform their duties” — section 83. If they failed to do that, that would put them in jeopardy, certainly, in terms of the application of section 83 requirements. The Ministry of Attorney General, obviously, doesn’t get involved with how the CRT runs its operations. That’s the responsibility of the chair.

If there were an issue with bias or improper decision-making because of an outside influence on a tribunal member, keep in mind that the tribunal decisions can be reviewed by the B.C. Supreme Court. There would be no deference on a conflict of interest or on a tribunal member who was improperly receiving payment, motivated by self-benefit or trying to benefit a third party by adjudicating a decision in a certain way. The court could hear arguments on that and could overturn decisions. So the court acts as the safeguard in that situation.

M. Lee: Thank you for that response. Just on subsection 119(b), I wanted to ask the Attorney General how this particular provision works. Section 9 provided for government to be a party to a tribunal proceeding under certain situations. So I wondered how section 119 was to be read against section 9.

[4:15 p.m.]

Hon. D. Eby: The member will remember that because government could be a party to an accident claim, we removed the restriction preventing government from being a party in front of the civil resolution tribunal. This is maintaining the status quo for non-accident claims. Government can only be a party in motor vehicle matters, not in tribunal small claims matters.

M. Lee: That isn’t clear enough from section 9 on its own?

Hon. D. Eby: The drafters put this in here as a matter of housekeeping organization and just to ensure clarity around the fact that government cannot be a party in small claims matters, only in motor vehicle matters.

There is a slight difference in wording around government as a party versus whether the tribunal has jurisdiction in a claim. At the end of the day, this is intended to provide clarity to people about when government can and cannot be a party in front of the CRT.

M. Lee: I think I understand that. Really, the way to read section 9 is…. The reason why I question it is only because under sub 9(1)(a), presumably a small claims matter is something of exclusive jurisdiction for the tribunal. I suppose section 119, then, basically is doing, in a separate part of the act, something that could have been clarified in sub 9(1).

Hon. D. Eby: I’ll accept the member’s comment. I think the intention is the same — to provide clarity around when government is and isn’t a party.

M. Lee: Are there other clarifications of that same nature required for other types of claims in this bill?

Hon. D. Eby: Not that we’re aware of, but if the member spots something, we’d be glad to hear about it.

M. Lee: So generally speaking, under divisions 4, 5 and 6, there is a differentiation in terms of what falls outside of the jurisdiction of the tribunal. I ask if the Attorney General could just walk us through. We could do it separately, but in each case — not each provision, but generally speaking — what’s the approach, the methodology, that’s being utilized here to differentiate between matters that are within the jurisdiction of the tribunal versus matters that are best dealt with by the Supreme Court?

[4:20 p.m.]

Hon. D. Eby: There is no change in substance, due to these changes, between the existing bill and the proposed numbering changes. It’s simply a matter of housekeeping and organization of the bill.

M. Lee: Turning to division 7 on accident claims, I would ask the Attorney General to explain the differences between sub (a) and sub (b) in terms of the definition of “accident.”

Hon. D. Eby: Could the member clarify which section he’s looking at?

M. Lee: “Division 7 — Accident Claims,” section 132.

[4:25 p.m.]

Hon. D. Eby: This provides the tribunal with two different scenarios in which to apply the definition of “accident.” Subsection (a) talks about…. It’s actually easier to start with (b). Section (b) says if you’re doing a determination in respect of benefits, insurance benefits — it refers to your basic insurance — this is the definition that you should use, tribunal. If you’re doing a determination on something that is not basic insurance benefits, subsection (a), then this is the definition you should use. There is a difference between the two accident definitions.

Subsection (b) in respect to benefits — accident benefits, basic insurance benefits — is talking about your own insurance. It’s accidents that are caused by the use or operation of a motor vehicle. It’s a more narrow definition of accident. But if you’re not talking about accident benefits and you need to figure out the definition of accident to make a determination in a claim, it’s a broader definition. It includes use or operation of a motor vehicle, but it also includes caused by a vehicle. An example of that might be where somebody jumps out of the way of the car, and they’re injured as a result. It’s caused by the vehicle, but it doesn’t arise out of the use or operation of the vehicle. Or a vehicle is picked up by floodwater and collides with something else, and it’s caused by the vehicle.

So definition (a), for outside of the basic insurance benefits, has a broader definition. And subsection (b), when you’re talking about resolving a claim with respect to accident benefits, then it has the more narrow definition that arises out of the use or operation of a motor vehicle.

M. Lee: Of course, this bill incorporates the meaning of minor injury from Bill 20. We could get into that discussion here to a certain degree, but I suppose for now, let me just work through the other provisions first and then come back to that.

In terms of subsection 133(2), we still have the combination of exclusive jurisdiction and specialized expertise. We’ve gone through that in the course of other provisions of this bill, but just for the record, would like the Attorney General to speak about this provision in the context of accident claims.

Hon. D. Eby: This is just as we had discussed previously around exclusive jurisdiction in relation to specific matters. The carve-out that we talked about is in section 25, around liability. Otherwise, the tribunal is intended to have by this bill exclusive jurisdiction described in (a) and (b) there, which is “(a) the determination of entitlement to benefits paid or payable under the Insurance (Vehicle) Act” and “(b) the determination of whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act.” So exclusive jurisdiction there.

It’s considered to have specialized expertise in relation to the subsection (c), which is “liability and damages, if the amount…is less than or equal to the tribunal limit amount,” which we’ve talked about — $50,000.

M. Lee: So in terms of sub 133(3), the purpose of that provision, I would just like to ask the Attorney General to walk through.

[4:30 p.m.]

Hon. D. Eby: This is to recognize that someone may have more than one dispute with ICBC arising out of a motor vehicle accident. It might initially start as a dispute about whether or not they have a minor injury. But then later on there might arise a dispute: “Oh, ICBC is not paying injury benefits to which I’m entitled.”

A person can make multiple requests for tribunal resolutions relating to a single accident. If issues are coming up in relation to ICBC’s conduct that they want to have resolved by an independent decision-maker, then they can appear at the tribunal, even if it arises out of the same accident.

M. Lee: If those circumstances arise, if you’re dealing with the same accident and there are different potential aspects of that same accident being put in front of the tribunal, what’s the overall limit to that determination or that dispute?

Hon. D. Eby: There would be nothing in this that would limit someone’s rights because they brought forward for resolution one or more than one separate dispute that they had with ICBC. They would be able to….

They’re treated separately, as separate disputes, unless, of course, they concern the same subject matter. If there are two filings a person makes about whether or not they have a minor injury and they make them at the same time and it’s the same evidence, that is a matter that…. Or maybe better, if they were being denied accident benefits and they filed two separate proceedings around that at the same time…. I mean, it’s sort of a far-fetched scenario.

[R. Chouhan in the chair.]

I’m trying to think about when someone’s ability to bring these might be limited. The intent here is that they’re able to resolve…. Any dispute that they have with ICBC, they should be able to resolve it through the CRT. That’s why the section says: “For certainty, a person may make a request for tribunal resolution in more than one tribunal proceeding relating to an accident.”

Even though there’s only been one accident, they might have multiple disputes with ICBC that they need to resolve. Their right to go to the tribunal to resolve those separate disputes isn’t limited by a jurisdictional amount or something like that, other than what we’ve already talked about in terms of the whole picture of the act.

M. Lee: I just wanted to ask next about subsection 134(1) in terms of the differentiation as to what matters do not belong under the jurisdiction of the tribunal. If the Attorney General can just walk us through the rationale in terms of how provisions under the Insurance (Vehicle) Act were separated out for matters that do not fall within the jurisdiction of the tribunal and would be better dealt with by the court.

[4:35 p.m.]

Hon. D. Eby: The intent with the civil resolution tribunal is to have them develop expertise in accident benefits, minor injury definition, administration and claims that are $50,000. None of these sections in 134 really relate to that. They’re areas where we didn’t want to…. The thinking was that they were better left with the court to provide the tribunal with the opportunity to really specialize in the areas we want them to focus on, which are the common applications that are going forward.

Examples of this are around subsection (a), which talks about financial responsibility to other insurers in other provinces; subsection (b), which is offences under the act; and subsection (c), which is where you may have forfeited your insurance but you’re asking the court for an equitable remedy.

These are very nuanced, specialized and specific provisions that wouldn’t allow the CRT to really focus on the areas where we want them to become expert, where we want them to be able to resolve claims quickly and efficiently and fairly for people who appear in front of them. The thought here was simply that these provisions were not as appropriate in front of the tribunal as they were in front of B.C. Supreme Court.

M. Lee: I just want to ask, then: were there other provisions that follow, under the Insurance (Vehicle) Act in its current form, that the Attorney General and his staff considered not to be part of the jurisdiction of the tribunal? There are many sections that follow those provisions — particularly in sections 77, 78 and 79 — that might be somewhat related and similar to those provisions, for example.

Hon. D. Eby: I think the concern here was that these were sections where there might be an injury wrapped in with the claim, so it might not be totally clear whether it should go ahead in the court or whether it should go ahead in the civil resolution tribunal. These are set out for greater clarity around: “Well, someone was injured in relation to this offence, so maybe this should go ahead in front of the CRT.” Specifically, section 42.1, the offence section — it’s set out here that the tribunal doesn’t have jurisdiction there. With the other ones, it’s more obvious that it would go ahead in front of B.C. Supreme Court.

M. Lee: Just in terms of section 135, there’s a presumption here in terms of what amount would be awarded, unless the party establishes, on the basis of satisfactory evidence, that there is a substantial likelihood that the damage would exceed the tribunal limit amount. I’d like to ask how a party to the claim in front of a tribunal will be able to establish and meet that test.

[4:40 p.m.]

Hon. D. Eby: That section only applies in the event of a minor injury where someone might be seeking to prove this. It is what’s referred to as their pecuniary losses. So these would be lost wages, typically, that are not otherwise covered by ICBC or another long-term disability coverage.

An example that staff floated that I think is a useful one is…. You’re a concert pianist. You have a hurt finger, so you’re not able to perform. It’s a minor injury, but your wages, over the period, exceed what ICBC’s wage benefit would be, to the amount of more than $50,000. The doctor says you’re not going to be able to perform at a concert for six months, seven months, and your losses exceed $50,000. So the evidence is expected to be relatively straightforward. What were your wages before, what was the injury that’s preventing you from working, and does that exceed $50,000?

It’s important to know what this doesn’t include. Just because you were driving a Ferrari, for example, and you had material damage that might have exceeded $50,000 to that vehicle, that’s not counted in this calculation. This is only financial losses that relate to the minor injury.

It would be the evidence of what your wages were before. The nature of the injury will be sufficient to demonstrate to the court that it should be heard somewhere else — or evidence to the tribunal that it should be heard somewhere else — or that it should be heard in front of the tribunal because it’s beneath the set limit.

M. Lee: I appreciate that, and I appreciate the examples that were given. But they seem to be…. I mean, those may well be clear-cut examples, but I’m sure that there are lots of other examples to which this might apply that won’t be so clear-cut.

I think the weighting would then be on substantial likelihood. Satisfactory evidence may be clear, particularly if a person is not an elderly person, not a person who is home taking care of his or her children, not a person who is not gainfully employed, let’s say, outside the home. Putting aside those people for a moment, in a case where someone is making income outside the home and they’re deriving something that’s definable, I agree with the Attorney General that there would be satisfactory evidence, potentially, about that.

[4:45 p.m.]

I guess it would turn to whether there’s a substantial likelihood, which turns into the nature of the minor injury itself and whether there’s a serious impairment that might go on for more than 12 months.

Substantial likelihood, then. What’s the test around substantial likelihood that might apply to a situation where we’re dealing with minor injury determinations by a claimant who may or may not be represented by legal counsel?

Hon. D. Eby: It may be that the tribunal looks at the evidence that’s presented and says: “Oh no. You’re well within $50,000. No issue here. You’re going to go ahead in the tribunal.” But then the hearing goes on, and it turns out that, in fact, the person’s pecuniary damages exceed $50,000. What happens then? Well, that feeds right into the next couple of sections that talk about what happens in that scenario, where it’s determined that the amount that should be awarded exceeds the tribunal limit amount.

This is about…. If you want to go up to B.C. Supreme Court peremptorily, before the hearing in the civil resolution tribunal is complete, you could make this application. There’s really no significant risk for the claimant, even if they’re unsuccessful in this application. Ultimately, there will be a determination on all of the evidence by the CRT, and if it’s exceeded, there are provisions here that deal with what happens. They don’t lose out because they failed to prove it at first. They still get to claim those damages.

The test of a substantial likelihood, on its face, is the test that the tribunal applies. Is there a substantial likelihood that the damages will exceed the tribunal limit amount? That is within the discretion of the tribunal on the evidence that a claimant presents to the tribunal.

M. Lee: Well, in terms of the non-binding neutral evaluation, is there a concern regarding how this might be prejudicial to the claimant — to have that evaluation on the record even though it is not to be disclosed to the court? How do we define “neutral evaluation” in this instance? It will be presumably provided by an expert or…. Who will provide that neutral evaluation?

[4:50 p.m.]

Hon. D. Eby: The opportunity here is for all of the parties to a dispute to consent to or to request the provision of a non-binding mutual evaluation of the likely amount of damages. The advantage of that is to facilitate settlement and the hope that that would support the discussions that the parties are having, and they could potentially avoid going to Supreme Court.

But it’s not necessary. Any one of the parties to the dispute could say, “No, we don’t want this. I’m worried about receiving that for some reason,” and it doesn’t have to happen. In any event, the evaluation can’t be disclosed to the court.

I think that that addresses the member’s question. I hope so.

M. Lee: Is there any concern, then, in that context, that in providing that neutral evaluation, it effectively will colour the rest of the proceeding to the extent that there isn’t a settlement?

Hon. D. Eby: There is no “rest of the proceeding,” because the only time that this happens is where the case manager determines that the damages exceed the tribunal limit amount. It’s no longer within the jurisdiction of the tribunal. They can’t hear it. So there’s no “rest of the proceedings.” It’s just a matter of, in that scenario, whether the parties agree they do want….

Maybe they’ve gone down a huge road of providing a bunch of evidence and information, and they want to get a number and get a sense about what the claim is worth. They can ask for that and receive it. It can’t be disclosed to the next level, so the court is blinded to it. It doesn’t get to see it. They just get some information about where the claim is at in terms of a non-binding evaluation, and they can accept it or not. It doesn’t matter. But they’re off to court anyway, because they’re outside of the provisions of the jurisdictional limit of the tribunal.

Sections 32 to 39 inclusive approved.

The Chair: I like this speed. It’s good.

Sections 40 to 49 inclusive approved.

Title approved.

Hon. D. Eby: I move the committee rise and report completion of the committee stage without amendment.

Motion approved.

The committee rose at 4:53 p.m.

The House resumed; Mr. Speaker in the chair.

[4:55 p.m. - 5:00 p.m.]

Report and
Third Reading of Bills

BILL 22 — CIVIL RESOLUTION
TRIBUNAL AMENDMENT ACT, 2018

Bill 22, Civil Resolution Tribunal Amendment Act, 2018, reported complete without amendment, read a third time and passed unanimously on a division. [See Votes and Proceedings.]

Hon. M. Farnworth: I call second reading on Bill 20.

[R. Chouhan in the chair.]

Second Reading of Bills

BILL 20 — INSURANCE (VEHICLE)
AMENDMENT ACT, 2018

(continued)

J. Martin: This is interesting. It’s the first since I’ve been here that I’ve ever kind of run out of time on a Thursday and come back ten days later to finish off a part of the debate, to try to think: “Okay, was I on a roll? Was I kind of running out? Where do we pick up there?”

A fair bit has happened in the last ten days regarding this piece of legislation. It’s certainly a very topical one, and I think that despite whatever resolution this House ends up reaching with regard to Bill 20, we’re going to be hearing a lot more about it. It’s certainly one of those pieces of legislation that, on the surface, perhaps lends itself to some legal challenges regarding certain parts of it. It’s a very contentious one.

I think, just for a moment, I’d like to express how contentious it is. When I go to pay my house insurance, as I did last week, I know what I’m buying. I know what I’m purchasing. I live in Chilliwack. I live on a floodplain. My property has had water damage in the past, and it surely will again at some point.

[5:05 p.m.]

I’ve always been very mindful of that, when I carefully picked my supplier, my insurance source, that I would have adequate insurance should something happen to my home — whether it’s leakage, or we get a freak storm and we get a quick melt, or we get a pileup of water through rain, etc.

I know what my deductible is. I know it’s going to cost me $500. I know that my insurance is going to pretty well pay for whatever needs done in my home. If my basement was completely flooded out, that’s probably about $40,000 of rehab and replacing some stuff.

Now, I wonder what would have happened had I gone in there last week to pay my insurance and they said: “Oh, by the way, Martin, just to let you know that if you do have a claim, your deductible is still the same $500, but we’re only going to cover you for $1,000 for all the damage to your basement. We’ve had a rethink here. We’ve got some issues down the road about the stability of the insurance sector, so we’re basically going to lay this on you, and you’ll get a maximum of $1,000 coverage, restoration, replacement.”

Well, obviously, that wouldn’t go over too well. In all likelihood, I’d mumble some language that I’d probably regret later, and I’d look for another insurance agent. Well, people can’t do that with ICBC, because as we all know, it’s pretty well the only game in town for the bulk of one’s coverage.

We run into a situation where those who maybe can afford extra coverage, personal injury coverage above and beyond what comes with their ICBC coverage, may have some protection. They may have compensation, and they may have someone they can turn to should they should get into an accident that creates problems for them over the long term. But for the others, the $5,500 maximum may end up being a bit of a problem.

We did have a discussion last time I was in here, and we talked about what’s problematic about determining what a minor injury is within a set brief period of time. We know that over many months and years, that so-called minor injury can result in being a lot more complicated than that. We also know that there are some questions around the legitimacy of having cabinet decide what a minor injury is, as opposed to one’s family doctor.

We also have concerns now coming from the British Columbia Psychological Association, who have great issues with the classification of psychological and psychiatric conditions as minor injuries in this Bill 20. The association is quite adamant that psychological injuries are not minor injuries. Every individual is unique. Their symptoms are unique, and they work through their trauma in many different ways.

It can be extremely awkward and challenging and difficult to determine within a 12-month period what the extent is of a psychological injury — whether this is restricted to pain, functioning of physical injuries, pre-accident history, prior history of depression, anxiety, substance abuse, adverse early childhood experience, neglect, trauma, coping styles, cultural factors. There’s just a myriad of factors that play into psychological trauma that can be triggered and can be amplified and extenuated as a consequence of the results of an automobile accident.

The duration of these symptoms after an event…. It’s not a clear, appropriate, stated scientific measure of the psychological injury. It’s not something that shows up on an X-ray. It’s not something that shows up on an MRI. There’s no prescription for exactly how long this is going to take to work through or to resolve or to at least mitigate, as we all process those types of experiences very, very differently.

[5:10 p.m.]

I think that it’s incumbent on the government, particularly should this piece of legislation pass…. It’ll be highly incumbent on the cabinet, who are going to be able to determine what is and what is not a minor injury.

This is going to be quite significant on their plate. They’re already tasked with, obviously being in a much better position than Elections B.C., determining what course the referendum on electoral reforms should take. Now — much more so than your family doctor — they’re going to be determining a schedule of what constitutes a minor, versus a non-minor, injury. Over the long haul, this is going to be very, very significant and problematic, and there will be challenges to it.

It’s kind of ironic, coming on the heel of some landmark legislation from this government with regard to the presumptive factor of post-traumatic stress disorder. Whereas we are going to be very, very mindful of doing the right thing for individuals who are fortunate to be working in certain labour classifications — their PTSD will be dealt with for the long term — those that might encounter something similar as a consequence of an automobile accident are basically left on their own. They can figure out their psychological conditions, their post-traumatic stress disorder, their depression, their anxiety, their inability to interact with their family and their loved ones the way they did at one particular point in time.

This is a piece of legislation that we’re going to be dealing with and hearing an awful lot more on, regardless of what comes and goes at the end of this session. I thank you for the opportunity to speak to this.

S. Cadieux: I’m pleased to take my place to speak to Bill 20. First off, just let me say that there are pieces in this legislation that I do support. Those are the amendments that will make a change, for the commitment to benefits payable, from $150,000 to $300,000, for accidents occurring on or after January 1 of 2018, on the “no-fault benefits” that are provided. I think that change is long overdue.

I understand the value of that program and how it provides for support for individuals who’ve been injured during the first while after their injury. I think it’s a really important program, and I think that that’s a legitimate change to be making at this time. I also support the amendments made to expand the list of providers that can be paid as accident benefits — massage therapists, and so on — however, with the caveat that I don’t support the government setting caps on what those providers can charge, necessarily. I think that has to be discussed more at committee stage.

As one member of this Legislature that has had the unfortunate circumstance to find themselves the victim of a significant car crash — a significant, catastrophic injury, as they say — and who did go through the process with ICBC as the carrier of the insurance…. I’m not sure if there’s anyone else in this House that has had that unique experience, but I have a unique perspective on why we, as individuals, carry insurance and on the value of that, should we ever have cause to call on it.

I think that British Columbians deserve better than what’s being presented in this legislation. You deserve fair compensation when you’re injured. This legislation — the proposal to set a limit and a cap on minor injuries, and for the cabinet to determine what a “minor injury” is — really is troublesome to me. Injuries are unique; people are unique. No two injuries are the same. In my eight years or more working with people with spinal cord injuries, many of whom ended up with those as a result of car crashes, the reality is that no two injuries are the same, and no two people’s experiences with that injury and that recovery are the same.

[5:15 p.m.]

It’s not dissimilar with minor injuries or what we would class, perhaps, as minor injuries. I certainly don’t want anyone in this House determining, for me or for someone I care about, what a minor injury is or is worth. That’s why we have a system that we can appeal to. That’s why we buy insurance. That is why we enter into a contract with an insurer to provide us coverage should we need it. We understand when we buy that coverage what that coverage covers.

I am concerned that now the government is suggesting that they will make modification to all of those contracts out there in the form of vehicle insurance and how that affects the validity of those contracts.

If the right will remain with the government and the cabinet to make change by regulation at any time to what constitutes a minor injury, what a cap on damages might be, who can be paid for a service like chiropractic or massage, how much they can be paid for that service, who is eligible to determine the severity of someone’s injuries, and what that injury might require in the way of rehabilitation or what that injury or resulting disability might mean financially for that individual on a go-forward basis…. I’m very concerned that the government now thinks that it’s appropriate for them to make those determinations behind closed doors.

I believe that the system is there to protect us, and we pay for that right through our insurance. Now, everyone is concerned, and I’m one of them. I’m a buyer of insurance, and I’m concerned about the rising cost of insurance. I’m certainly concerned about the claim rates and costs at ICBC, but I don’t think that this wholesale change is necessarily the answer, and I’m concerned about it.

We’ll go through a lot more at committee. We’ll ask questions, and maybe we’ll get some answers. I would like to know where this arbitrary figure of $5,500 for a minor injury comes from. The minister has stated that they’re seeking expert opinions, medical opinions, on what should constitute a minor injury and how that will be determined. But unless that is made public, that too leaves a lot to question.

I guess…. For those who may not have gone through this process before, when one is injured, the first 90 days or so are always difficult, traumatic. You wonder whether or not you’re just stiff or sore or how quickly you might heal. One injury on two different people could have a very different rate of healing, could have a very different need for rehabilitation.

Now government is suggesting that a whole host of things would be considered minor injuries, that those would be determinable in 90 days, and that they would then be settled — $5,500. Boom, we’re done. Thank you very much. Go home. That’s all your insurance covers.

Well, I don’t know. Because at the same time, they’re saying: “Yeah, but if your minor injury lasts for over a year, and there are impacts, well then it’s no longer minor. It’s major.”

How is that going to work? How is it going to work that I’ve been classified as having a minor injury. I’ve been given my decreed settlement by the government of $5,500, and now, 12 months later, I am still suffering. My injury is much more severe than…. That initial person that government determined was capable of making that assessment early was wrong. Now what happens? Now I sue? Now I go through this process again with ICBC? Is that $5,500 now repayable? How does this work?

[5:20 p.m.]

I am really concerned that this is an attempt strictly to find an easy way to balance the books at ICBC, and I don’t think it’s in the best interest of British Columbians. I don’t think it’s in the best interests of those who will, unfortunately, find themselves the victim of an injury as a result of a crash, whether that be through their own fault or others.

The reality is those individuals deserve to be treated with respect, deserve to be treated with the time and the reasonableness we have all come to expect. If the reality is that today the average cost of a claim for a minor injury is $30,000, how is it government feels it’s now appropriate to say: “Nope, that’s too much. We’re just going to make it $5,500”?

I expect that the majority of claims that have been settled in the past for $30,000…. If that is the new norm, that new norm has come about through a process in the courts, through a judgment made by someone who is impartial to that individual and has determined that that is a reasonable compensation for an injury.

Now to say that a whole host of things would be classified as minor — behind closed doors, as the government sees fit — is really, I think, appalling. While I understand the need for change, I understand that we need to be looking to do some things differently and that we need to look at the rising costs of claims, we are not alone in that. So is the rest of North America.

While I don’t think that the present legislation provides that solution, I am not suggesting that we won’t get some answers in committee that will set aside some of my concerns. Perhaps we will. But I am concerned that this looks heavy-handed, at minimum.

I’m very concerned about what it says when we write into legislation: “Oh, we’ll just make all these decisions at cabinet. Trust us. Government will make these decisions behind closed doors.” When it comes to something as fundamental as the right to seek damages when one is injured, I think British Columbians deserve better than that.

With that, I will stop my comments at this time on Bill 20. We’ll see what the government has to say in committee on this bill, but I, at this point in time, remain extremely concerned.

A. Kang: I am speaking in support of the second reading of Bill 20, the Insurance (Vehicle) Amendment Act. This legislative amendment is long overdue. The inaction and outright negligence of the previous government resulted in a financial crisis at ICBC. When pressed with difficult decisions, they failed to act, which resulted in significant damage to our provincial auto insurer.

Our government recognizes that British Columbians deserve better, which is why we are taking action to ensure that ICBC is able to continue delivering quality auto insurance at an affordable rate. By supporting the proposed amendments in the bill before us today, we will begin to restore ICBC’s financial stability and improve the care available to all those who are injured in an accident.

Today we are proposing amendments to the Insurance (Vehicle) Act and the Civil Resolution Tribunal Act, which is the CRT, in order to make necessary changes in the way our public insurance company operates. By implementing these necessary changes, we’ll be laying the foundation to help relieve pressure on ICBC’s basic insurance rates, help keep rates affordable and increase the care available to those who are injured in a crash.

These changes will provide the framework for the first major improvements in accident benefits in more than 25 years and will dramatically increase the care available for anyone injured in a crash. These amendments will serve to direct more money to care, more money to treatment and to support British Columbians injured in motor vehicle accidents and will lead to a quicker, more affordable dispute resolution process for minor injury claims, through the use of CRT. We anticipate that this will create substantial savings and help mitigate the damage done to ICBC over the last 16 years.

[5:25 p.m.]

This bill will limit the pain-and-suffering payouts for minor injury claims to $5,500. These changes set the groundwork to double the overall medical care and recovery cost allowance to $300,000, retroactive to January 1, 2018, along with increases to wage loss, household support and other benefits, ensuring that money in ICBC actually goes to treating injuries rather than lengthy litigation.

Our government set out an independent review of the Crown corporation, and PwC has confirmed that change to how injuries are treated and compensated under B.C.’s auto insurance system is the single biggest action that we can take to provide improved benefits and make rates more affordable for British Columbians.

We need to close the gap between the premiums ICBC collects and the cost of claims paid out. The legislative amendments introduced will expand the CRT’s scope to include making decisions on matters where there’s a disagreement between the customers and ICBC. These issues include the classification of an injury as “minor injury,” the entitlement to receive accident benefits claimed, and the liability and quantum decisions for motor vehicle injury claims below a threshold of $50,000.

The amendment will also allow lawyers to represent parties to motor vehicle claims, as ICBC will be represented by an experienced adjustor. It amends CRT regulation and rule-making, with the power to limit experts and the power to require a single joint expert. As well, it will limit the recovery of fees and expenses to what a person would be entitled to in a CRT if a case value below $50,000 is adjudicated in the B.C. Supreme Court.

ICBC projected a loss of $1.3 billion in the 2017-2018 fiscal year. Something needs to be done, and our government is taking action. Yes, these are big changes, but they are necessary. We’ll also be making changes to improve road safety, reduce collisions, target high-risk drivers and reduce ICBC’s claim costs. ICBC did not get into this situation overnight; it was years in the making. In fact, B.C. is the last province in Canada to introduce some form of restriction to supplementary compensation for minor injury claims beyond the treatment or benefits required for recovery.

The 2017 EY report said: “Product reform has been largely effective across Canada, and the universal result has been a reduction in claims costs and, subsequently, insurance rates.” The amendments in the Insurance (Vehicle) Act will provide a framework for affordable, financially sustainable insurance and support a substantial product change to the auto insurance system in B.C.

Savings from the amendments and future regulatory changes are estimated to reduce ICBC’s claims costs by more than $1 billion every year. The journey to fiscal stability will be gradual, but we expect to see incremental progress as early as this coming fiscal year. The question is: how much will these changes cost? ICBC estimates that the cost to implement the changes to its basic insurance product, including updates on how rates are set to improve fairness, is close to $100 million in capital and operating costs.

We know that the window of opportunity to make fundamental changes is now. These changes are coordinated efforts to relieve pressure on rates, because drivers should not be made to pay for the state of ICBC this government inherited. The amendments addressed in this bill will result in faster resolution of disputes and a reduction in the amount that ICBC spends on legal fees and expenses.

These product reform changes are decisive actions that focus on customer care and will help relieve pressure on ICBC’s rates and improve its fiscal outlook. The impact of these legislative amendments would lay the foundation to help relieve pressures on ICBC’s basic insurance rates, help keep rates affordable and increase the care available to anyone injured in a crash.

Thank you, hon. Speaker, for this opportunity to speak in favour of these amendments.

Deputy Speaker: Seeing no further speakers, the minister to close the debate.

Hon. D. Eby: Thank you to all the members who spoke to the bill. I heard a number of questions from members about how these provisions will operate. Why is $5,500 the proposed limit on minor injuries? What specific consideration will there be in the regulations? Were the regulations directed, and so on? All are important questions that we’ll address in the committee stage.

[5:30 p.m.]

I did want to address, though, one subtheme that was going through some of the speeches, which was: maybe ICBC’s not in financial trouble. I just want to point out the absurdity of that theme in the speeches. The government did not wipe out a billion of taxpayer dollars in the budget to make a point about the previous administration. ICBC is in financial trouble. The audit committee of ICBC includes the Auditor General, and it includes PwC. We reviewed the books of ICBC, not just with PwC. We’re now doing a second review.

The previous government actually knew the financial state of ICBC. When they booked savings from the report that they hadn’t actually received yet and when they projected selling icbc.com to the Industrial and Commercial Bank of China, when they booked the sale of real estate assets that they hadn’t yet sold in order to make things look better than they actually were, the previous government knew that ICBC was in financial trouble.

I just wanted to go on the record and be really clear. This is not something we’re doing for fun. This is not something where the government has this secret plan to rework car insurance. It certainly wasn’t my plan to get into government in order to work on car insurance.

This is something that has to happen because ICBC is in financial trouble. There are two options. One is we can fix the underlying components, the underlying foundation at ICBC that’s driving increased costs, especially around minor injuries and how those claims are administered. Or we can increase rates. Those are the options that are available.

We are addressing those options. I am glad the members are raising really important questions about how we’re doing that and making sure that we’re doing that responsibly, that we’re doing it in the least impairing way possible and that we’re making sure we’re looking after people who are injured in car accidents. Those are critically important questions.

I just really struggle with the theme that was raised in some of the speeches from the opposition benches that maybe ICBC is financially fine, and this is being done for some other reason. ICBC is not financially fine. It’s in real trouble, and we are not going to raise rates on British Columbians. We’re going to fix the dumpster fire.

With that, I move second reading.

[5:35 p.m.]

[Mr. Speaker in the chair.]

Second reading of Bill 20 approved on the following division:

YEAS — 43
Chouhan	Kahlon	Begg
Brar	Heyman	Donaldson
Mungall	Bains	Chen
Popham	Trevena	Sims
Chow	Kang	Simons
D’Eith	Routley	Ma
Elmore	Dean	Routledge
Singh	Leonard	Darcy
Simpson	Robinson	Farnworth
Horgan	James	Eby
Dix	Ralston	Mark
Fleming	Conroy	Fraser
Chandra Herbert	Rice	Krog
Furstenau	Weaver	Olsen
	Glumac
NAYS — 40
Cadieux	de Jong	Bond
Polak	Wilkinson	Lee
Stone	Wat	Bernier
Thornthwaite	Paton	Ashton
Barnett	Yap	Martin
Kyllo	Sullivan	Isaacs
Morris	Stilwell	Ross
Oakes	Johal	Redies
Rustad	Milobar	Sturdy
Clovechok	Shypitka	Hunt
Throness	Tegart	Stewart
Sultan	Gibson	Reid
Letnick	Thomson	Larson
	Foster

Hon. D. Eby: I move that the bill be referred to a Committee of the Whole House to be considered at the next sitting after today.

Bill 20, Insurance (Vehicle) Amendment Act, 2018, 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. M. Farnworth: I call second reading, Bill 18.

[5:40 p.m.]

[L. Reid in the chair.]

BILL 18 — LOCAL GOVERNMENT STATUTES
(HOUSING NEEDS REPORTS)
AMENDMENT ACT, 2018

Hon. S. Robinson: I move that Bill 18, Local Government Statutes (Housing Needs Reports) Amendment Act, 2018 be read now a second time.

I’m pleased to talk about this important piece of legislation, because this bill will make housing information collection a regular part of local government business, and it will improve local government’s capacity to regularly update the land use plans that are key to delivering the right number, type and location of homes. As we all know, good solutions require good data, and this bill will ensure that local governments have the data that they need to provide the homes that people in their communities need.

When I was in local government, I was surprised, a few years in, when all I saw was a development of 600-square-foot condominiums, and there were so many of them going up in my community in Coquitlam. What was happening right before our eyes was that we had two kinds of housing. We either had 600-square-foot condominiums or single-family housing. And the diversity of housing that we need, the two- and three-bedroom condominiums, the townhouses, the rental, just wasn’t being built. Local governments really weren’t able to be on top of what was going on and, as a result, were not able to make the kinds of decisions they needed to make.

This bill specifically establishes a new requirement for local governments to collect housing information and to report publicly on the outcomes of those assessments. Information will need to be collected and reported on within three years of this legislation taking effect, and updates every five years will be required thereafter.

In order to ensure transparency and shared access, reports will be publicly available. It’s important that everybody know the kind of housing that exists in their communities, the condition that it’s in, understanding what the opportunities are, what the needs are for one’s community. Local governments will need to consider the information in these reports when they are updating key planning documents, such as their official community plans.

But we also know that communities come in all shapes and all sizes and have different constraints and different opportunities. Ensuring that local governments have all the information they need to design their communities to properly reflect the housing needed by residents is absolutely critical. We want to make sure that these requirements do not unduly burden communities where, for example, there may be a limited capacity or very low rates of population change.

Consequently, the bill also provides for the ability for ministerial exemptions of local governments from the requirement entirely, or to specify the type and level of detail of information to be collected or modify requirements should there be a need. So in very small communities like Zeballos — I think there are just a few hundred people, if that….

Interjection.

Hon. S. Robinson: Go, Zeballos.

We can already foresee that it won’t be required that they do a full housing needs assessment, given their small population.

[5:45 p.m.]

We also want to make sure that the good work that many local governments have already undertaken to develop housing needs assessments is counted as part of these requirements. So the bill provides for that circumstance as well. There are so many local governments that have already undertaken this work. They’ve already recognized the need to do a housing needs assessment. They’ve undertaken it on their own, and I want to thank them and congratulate them for their foresight and their focus on recognizing the need for it, to have good data.

Overall, this requirement should not exert any undue impact on local governments. As announced in Budget 2018, we will be providing local governments with funding support and developing detailed guidance over the coming months to assist them in the implementation and to ensure that there is sufficient time for local governments to prepare for these new requirements and that the supports are well in place. The legislation will come into effect upon adoption of regulations, specifying in more detail what information is to be collected and reported on.

This bill will assist all of us to work together to ensure that the right types of rental housing, the right supply of rental housing, and all kinds of housing is available in communities throughout British Columbia so that local governments know what the needs are of their communities.

Communities know what it is that they need. They have an idea, as their children grow or as they age, whether or not there is going to be enough housing for them or the kind of housing that they’re going to need as they retire. It allows, actually, the development community and those who are building the homes that people live in to identify what the gaps are so that they can tailor their proposals as well.

I hope that everyone here in this House joins me today in support of Bill 18, and I would like to now move second reading.

S. Sullivan: Thank you, Minister, for your efforts to deal with this housing crisis, this serious problem that we have in this province. I respect that there are some good attempts being made here, but I also want to bring a little bit of perspective to this.

Just a few months ago CMHC released the most comprehensive report ever on rising house prices in Canada — 30 PhD economists working for a year. They had a budget of $1.5 million. They came to some very interesting conclusions. They did a lot of good research. They basically concluded that Vancouver has a broken supply curve. Most cities — Montreal, Edmonton, Calgary — have a very healthy supply, elasticities, healthy supply curves. A rise in price actually produces results in a very healthy response, and there is more supply of housing that comes about as a result.

The two cities that stood out are Toronto and Vancouver. Toronto had a terrible supply curve problem. It’s a 0.5 elasticity, meaning that only half the houses that you would expect from a price rise would be forthcoming. Vancouver was absolutely abysmal. It’s 0.25 — between 0.2 and 0.25. So for every rise in house prices, either one-fifth or one-quarter of the housing that we would expect in a healthy city comes on to the market.

There are two options, two ways to deal with this kind of a problem: (1) fix the supply curve or (2) break the demand curve. You’ve got a healthy demand curve now, and we have a broken supply curve. You can either fix the supply curve or break the demand curve.

Now for 50 years, no politician has dared to fix the supply curve and allow the market to build more homes. When I look through the 30-point housing plan that this government has put forward, I see that the first 13 points are really about damaging the demand curve, trying to suppress demand. No. 1 to 13 — almost all of them are really about raising taxes and putting taxes on demand.

[5:50 p.m.]

Now, 14 to 20 are about supply, but it’s about government supply for special populations — for Indigenous people, for homeless people, for students, etc. All of these very valid and important. But they are about government supply. They’re not about the market supply curve.

And 21 to 24 are about helping renters — nothing to do with increasing supply. In fact, some would say if you make some types of changes, it actually starts to depress supply for rental housing. Some of these don’t do that, but some of them have a danger of doing that.

So 25 — once again, government partnerships. Point 26 is actually about Bill 18 — that’s today — and 27, the MRDT. It’s actually, once again, government-partnered housing. Then 28 is exempting municipal taxes; 29, short-term rentals; and 30, transit.

It’s very depressing to look through all 30 points and find that not a single point, not one, deals with the market supply curve. That is what the most comprehensive report ever done begs us to do. The report is very clear. We must find ways to increase supply. We must fix the supply curve.

Sadly, the uncertainty caused by these demand taxes, the first 13 that are actually put in place, will inadvertently…. Well, they could reduce supply even further. The surcharge on high-value homes is reducing sales volume and also the price of homes. This actually reduces a significant source of government revenue. Property transfer tax, etc., actually all go into government revenue. So by attacking the demand curve, this government is actually reducing its own revenues. All of these taxes will directly hit job creators and send them a message: you’re not wanted here.

When I first saw the government plans on housing, to me, when I was trying to understand it, it really seemed to be a form of house rationing — one home for every household. Anybody who had two would be taxed. We haven’t had rationing since World War II. That’s what the undercurrent was of this.

When I think about this issue of secondary housing…. It’s interesting, because ironically, politicians are among the greatest offenders of the second-home ownership. Many MLAs have a home in their own constituency and another in Victoria. The speculation tax. I wonder: do we think of ourselves as speculators when we own a home in Victoria? Will we exempt ourselves from the speculation tax?

Then, of course, we have the empty homes tax, which could actually trip up some of our cabinet ministers, who would have to then also count the nights that they sleep in their home. If they get to less than 180, they will have to pay for that. If Victoria gets its way and has an empty homes tax, all of the MLAs will have to pay the empty homes tax. We don’t stay in our Victoria homes 180 days.

I worry that this bill is creating several, basically, five-year plans. The five-year plans for housing information — there’s no teeth to it. It doesn’t require cities to actually follow through and zone for their five-year plan.

[5:55 p.m.]

When I think about five-year plans…. Of course, the five-year plan really is dating back to the Soviet Union, when they tried to control their economy through five-year plans. I think about the very first ever international urban planning conference. It took place in 1898 in New York. They wanted to deal with the biggest crisis facing urban people at that time, and it was getting rid of manure. They felt that they needed to really focus all of the urban efforts. There was discussion that if they kept going the way they were going, manure would reach to the third storey of buildings in New York.

They also needed to find ways to get hay into the city. So an enormous amount of energy and planning effort went into trying to deal with manure and hay. Of course, a few years later, the automobile showed up. To me, it just gave an indication of the problem of five-year plans and trying to second-guess where the market is going to lead us.

The real way to manage this is through the market. The market determines and will put pressure on. Basically, the market creates price signals, and the price signals determine that there is a greater need for supply.

Right now in urban British Columbia, the market is screaming at us. When a little bungalow costs $5 million, the market is screaming. And right now, our municipal systems are deaf. They don’t hear a thing. There’s no response, and as a result of this lack of supply response, we get massive price increases.

I’ll just give you a few insights into the kinds of things that I believe if we go ahead with this bill…. I mean, I’m sure it can’t hurt having more information, but I think it actually distracts, once again, from what we really need to do, what the most comprehensive report told us we need to do: we need to fix the supply curve.

Right now, I’m dealing with, in my office in downtown Vancouver…. A Silicon Valley entrepreneur sets up a business in Vancouver, buys a flat nearby his business and finds out he has to pay an extra 20 percent as a foreign buyer. Now he’s being called a speculator, and he pays a large, annual speculation tax. Now he has to also count up the nights he sleeps in his bed, and if he doesn’t sleep 180 nights, he’s fined and accused of keeping an empty home. He has to deal with government inspectors who want proof of where he slept — all for the privilege of creating jobs for British Columbians. Welcome to B.C., eh?

I’ve got another couple — retirement. A Vancouver couple downsized, moved to Bowen Island. But because they volunteer on charitable boards and want to be near their grandchildren, they keep a downtown flat. They rarely made the last ferries anyways. They worked their whole lives building the city, saved for retirement. Now they’re called speculators and fined for keeping an empty home.

Darren, my neighbour, started an air-conditioning company many years ago, has a $2 million payroll. He lives in Abbotsford, but much of his work is downtown, so he keeps an urban flat. His son is a police officer. He works odd hours, so he stays there. They are now called speculators and fined for keeping an empty home.

They’re part of a worldwide trend. Young people in the world’s cities often live outside of town, commute to their urban flat, where they work long hours, and return to their homes on the weekends — less wasted time, less greenhouse gas from commutes, less rush hour traffic and pressure on infrastructure.

[6:00 p.m.]

Many urban British Columbians have summer homes in rural areas, but some who live and work in remote parts of British Columbia have their getaway home in downtown Vancouver, in my riding. They want to benefit from the many public services and attractions that their taxes paid for. The downtown flat is a growing feature of our emerging global economy, and this government has not made any allowances or understanding for it.

There is a growing literature on the need, and what we need to do is create more supply so that prices will come in check and we will have more people being able to find homes.

Right now, by attacking the demand curve, we are not solving the problem. We are actually creating more dysfunctions in the system. I worry about British Columbia moving from being an open, confident society to one that is closed and mean-spirited — all because government won’t act on the most comprehensive report on house prices and will not devote even a single point, out of 30, to actually solving the problem and doing what these 30 PhD economists from Ottawa have asked us and are really hoping that we will do.

All of this is good — having more information. The idea that it’s actually going to do anything when there are no teeth to it and when governments are notoriously bad at predicting where the market’s going…. As I say, what’s going to happen in the next few years, with Google cars and this growing phenomenon of the downtown flat? We are not prepared for that, and I don’t think this bill gets us any closer to it.

Those are my comments on Bill 18.

P. Milobar: It gives me great pleasure to rise on Bill 18. I’ll pick up on some of my colleague’s comments. Essentially, this bill really doesn’t do much to address housing in British Columbia, and I think everyone agrees that we need to keep addressing housing in British Columbia.

We always need to be looking at ways for improvements — to make sure people have access to housing, to make sure that there’s housing available for people regardless of what their income levels are so that people can find appropriate and safe housing and still be able to provide for their family.

All that said, this bill does none of that. It doesn’t address anything. It essentially tells local governments: “You need to generate some reports. You need to do a little bit of study.” Somehow, magically, that will suddenly make the supply increase. It’ll make houses more affordable for people, and it’ll provide for people across this province.

The fact that the government does recognize that this isn’t needed in probably 98 percent of the geographic area of the province of British Columbia, when you look in terms of growth and trying to project growth, I think speaks volumes to this being nothing more than a marketing piece, to try to wrap yourself into a piece of legislation to say you’ve tried to do something to affect affordability in the province. But actually, no, you’re going to accomplish precious little.

The $5 million for municipalities to try to hire staff to offset the cost — again, an admission by government that this is doing nothing more than adding more costs to local government trying to go about their daily business of providing services to the citizens within their municipal boundaries.

Municipalities won’t be hiring more staff to do this extra work. Staff in planning departments already do similar work. What will happen is municipalities will see a $5 million offset. They will track staff time to generate these reports, and they will submit and get back, reclaim some of those dollars. Those staff people would be otherwise doing work.

When you look in planning departments at the time lags and the delays of trying to get permits and other applications processed…. Taking those resources away from that type of work — of permitting, of getting approvals in place in a timely fashion — to generate yet another duplicate report about housing needs in a community is only going to slow down the ability for construction companies to actually build something in a community that would provide actual housing.

[6:05 p.m.]

There is already a shortage of planners in most municipalities. Layering in more, reports being needed, does nothing to help get permits moving through. Again, the fact that there’s $5 million dedicated in this bill to make sure that those costs do get offset is the government admitting that there is going to be an increased cost. This is extra work, and it does, really, generate nothing.

The government would be better off, frankly, putting that $5 million to building one extra building somewhere in the province. That would actually be a net increase to housing over anything that this bill is going to provide, moving forward. Most municipalities of any size that are already required to do official community plans, or OCPs as they’re known, are already doing this type of work. They’re already identifying where they would like to see growth areas, where they consult with the public about future growth, where they want to see densification, where they want off-limits.

All this report does is give another tool for an agency’s…. We’ve seen, in my area, things like applications to remove land out of the agricultural land reserve for housing. Decisions get rendered back, not that it shouldn’t come out of the agricultural land reserve but just not yet. Sometime in the future it will be the time. The member from Powell River shakes his head, but that is actually what the decision of the Agricultural Land Commission was. The time just wasn’t right for that to turn into housing, in spite of city planning, in spite of roads that dead-end out to a field, in spite of servicing being in that area. That’s exactly what happens.

This would just add one more layer of a report to that type of situation. The reality of the situation is that adding an extra report for communities that already know where they need to try to amass housing is not going to provide one more piece of housing in this province. This does nothing, as we’ve heard, to address the enacting or the actual follow-through of this.

Right now, with an official community plan, if you go to a public hearing and you need to do an OCP amendment to try to do something that’s outside of the official community plan, there’s a process to that. That can already be waived if the developer can prove that real-time market conditions require that there be a higher density in an area than was previously planned. Neighbourhoods show up; neighbourhoods don’t like it. If a local government chooses to go ahead, there’s a process around making sure that they can amend that official community plan. It’s called an amendment for a reason.

This does nothing to address any of this. This does not compel a local government to make sure that they have high densities. This doesn’t spell any of that out.

What this does is add another layer of reporting, another layer of bureaucracy to a local government, at an admitted extra cost of $5 million — an admitted $5 million needed for very few municipalities. This means there’s already an acknowledgment that it’s actually a significant amount of work when you start looking at how many municipalities will be required to do this type of work in conjunction with the $5 million available. In short, that’s what all this is.

This is window dressing. It does nothing to address housing in our province. It does nothing to compel municipalities to speed things along when it comes to permits, when it comes to approvals, when it comes to making sure that projects move forward in a timely fashion. That’s actually what will drive our housing to increase its supply — not dragging things on, not taking precious planning staff away from the work that they do, which actually accelerates and tries to move projects forward.

No, this will take them off that work and put them to do some other study, to craft some other numbers that, frankly, the provincial government should be able to get from the federal government, from a basic census. That’s what a lot of this work seems to want to find out: what the federal government is already discovering.

So perhaps we could have the provincial government, instead of spending $5 million on this, invest in a computer that has Google. They could go and pull off some census data, and we would have Stats Canada stats right there. They’d be able to look up just about any community that they’re looking for.

In terms of trying to make sure that they have proper densification, again, I would love to see where…. This bill, which strictly says, “Study and tell us what you would like to see, where you think your community is going to grow over the next five years,” sounds an awful lot like an official community plan. That sounds an awful lot like a regional growth strategy. In fact, that sounds an awful lot like them because those already exist.

All this is doing is adding another layer of reporting to a process. I will point out that an official community plan, to update, typically takes two to three years. In fact, it needs to come to the province for final approval anyway.

[6:10 p.m.]

If the province doesn’t like what’s within those official community plans, if the province doesn’t agree with how the designations of certain growth areas have been found or if they don’t like how certain areas are being protected or being impinged upon, they can actually reject that official community plan. If that official community plan has not been deemed to have gone through the proper amount of consultation with area Indigenous people, it can be deemed to go back to the drawing board, as well, for an update. That’s just for an update of an official community plan.

All this is doing is adding another layer of complexity to a system that is already long-drawn-out, already complex, and this does absolutely nothing to build one more piece of housing in this province. In fact, it will slow down the permitting and processing and the approvals in larger cities when those planning staff, where they’re already short-staffed, are being pulled away to work on a redundant report that is absolutely not needed.

What will happen is that the municipality will then get reimbursed by the province for the time that person has worked. What we will have is the province essentially paying to slow down the permitting process even further in this province. To me, that does not provide housing. This is nothing more than window dressing, and it does not take any substantive step whatsoever to provide one more piece of housing in this province.

A. Olsen: It’s my pleasure to stand today and speak to Bill 18, second reading. It’s quite interesting to hear the perspectives of my colleagues.

In my read of the bill, this bill isn’t designed to actually build new housing. This bill is so that municipalities can gather the data in order to inform the decision-making. In fact, that’s a piece in this bill that, to me, is a bit troublesome, to be honest with you. There’s nothing compelling the decision-making. It’s a consideration.

Where the government will get criticism that this isn’t building one piece of new housing, whatever that means…. My biggest challenge with this is that…. I don’t want the same thing, which is another report collecting dust. I want to see something that is going to inform decision-making.

In fact, in Saanich North and the Islands, the former MLA who was in this seat before me put together some money and various partners, and they did a report, a housing needs assessment. I’ve referred often to that housing needs assessment. It’s a good piece, for what he was able to put together, to identify gaps within our municipalities.

In fact, he extended it further than just the municipal governments. He extended it even to First Nations, which is something that…. When I take a look at some of the broadest housing needs that we have in our communities, especially in Saanich North and the Islands, those are going to be found within the First Nations communities.

We so often hear: “Well, First Nations are a jurisdiction of the federal government. That’s the jurisdiction of the federal government, and the federal government will figure it out.” But the reality is that the housing needs in a First Nation community so often impact the communities that that First Nation exists in. While we can separate the two by levels of government, I don’t know that for our communities, there’s actually any physical separation. There isn’t. We live and work and play within the community.

I think one of the pieces that the former MLA, the gap analysis that was done on the Saanich Peninsula…. I’m very thankful that he included the First Nations within that report. One of the things that I note is that there are a lot of reports that I was a part of in Central Saanich that still do gather dust on the shelf. They provide us that information. For me, I think one of the things that I would like to ask, when we get to the committee stage of this bill, is how it is that we can compel that information to be used to make decisions so that we’re actually building complete communities.

[6:15 p.m.]

Where my main disagreement is with the two members and the official opposition that spoke is that…. These actually can enable the construction of housing units. They inform the local government, if the local government decides that they want to be informed.

One of the challenges that I have in just simply suggesting that the market is going to solve this all for us is that…. The market has largely been left to determine what kind of housing is being built in our communities, and there are massive gaps.

There are massive gaps in our communities right now at the low end of the housing market. There is the no income, the low-to-no income, the middle income, the missing middle. We’re not building houses for those folks. We’re not building houses for small families, like the one that I have with a partner and two children. Those houses aren’t being built right now. But we certainly are talking an awful lot about how we’re building a considerable number of housing stock for condo units that are not for the identified housing gaps that are in that study that we have.

When I have brought that housing study forward to the municipalities in Central Saanich and North Saanich and Sidney, certainly they acknowledge them, but nothing is compelling them to follow that. That is a substantive gap within this bill, as I read it. Perhaps there might be something in there that can be done through regulation or within the bill. As I see it, it basically says in the bill that boards at the regional government level or councils at the local government level are to consider the information that they have.

As I was saying to my friend across the way here, there can be an awful lot of considering, lots and lots of considering, with very little action to actually do it. When you have a developer in front of you who’s very much laying out their economics for their project or the zoning that’s required or the desire that they have, that’s pretty compelling. When you are weighing, in the decision, the property tax benefit lift that’s going to happen to the municipality, perhaps it’s much easier just to approve that than it is to ask the question: what are we doing for the other aspects of housing? So that’s one question that I have.

I take a look at some other pieces to this that I’ll be asking about. It was suggested that, perhaps, staff will be doing this. There doesn’t appear to be any qualification. Who is going to be qualified to do these reports? Perhaps that’s going to come through in regulation, but I don’t see that in the bill. Is it going to be a staff member, as was suggested by the member from Kamloops? Or are these reports going to be contracted out to a professional? If that’s the case, who’s the professional? Which companies? And what are their qualifications in order that they qualify to do this work?

Also, I have another question that I’ll be asking around the terms of reference. It’s clearly laid out — what is going to be expected to be in this report. I’ll be asking around whether or not municipalities can add to that terms of reference and have a broader question being asked or if that’s going to be where it’s at.

Those are some of the questions that I have. In the spirit of this, I support gathering data. I support evidence-based decision-making. I support that. I support the collection of data. For me, the most important thing is that if we’re going to compel municipalities to collect that data, then that should inform the actual decision that comes out the other end.

I will leave it at that for today. We can get further in depth into this bill when we go to committee stage.

[Mr. Speaker in the chair.]

I’m thankful that this was brought forward for us to have the discussion. I think that it will inform the province and the decisions that we make here in the provincial government about where support can go, where funding can go and some of the decisions that need to be made on the market side of things.

I thank you very much for bringing it forward, to the minister, and I look forward to debating it at committee stage.

Mr. Speaker: The member for Surrey-Cloverdale.

M. Hunt: Thank you, Mr. Speaker, for the opportunity to be able to speak to Bill 18. I’m noting the hour, so I’m going to be trying to be as quick as I can. But there’s so much to say about this.

[6:20 p.m.]

I mean, when you look at this legislation…. The legislation is always, obviously, here to gain more data and to try and make better plans and planning for housing. That’s laudable, and that’s good, except the only problem is at the regional level, we already have the regional growth strategies that are created, and I believe they have to be renewed every five years. We already have the communities having to have official community plans.

What is in this that we are suddenly changing, and what is different? If we look at it, they’re looking for statistical information about the current and projected populations. Well, that’s what the OCP does. That’s what it’s all about, and that’s how you meant it.

Household incomes and economic sectors. That’s an interesting piece of addition. Does it mean that people that make different money live in different kinds of housing, or this and that and the other thing, or that those who are in the tech business are different than loggers, and they live in different kinds of housing — those sorts of things?

It also goes on, and it says that it must include information about currently available housing units. Well, I can tell you: nothing is available. What is anticipated to be available? Five years from now, we’ll most likely have that all sold out, too. Including information about the types of units and this sort of stuff….

I guess it’s really disappointing to hear that the minister, in her municipality, where she worked for many years as a councillor and was a part of the planning process, only seemed to have two types of housing. It’s really unfortunate that their planners didn’t get out to see the rest of the world and find out that there are lots of types of planning, and that’s a part of what we need to do. Actually, this just looks to me like a make-work project for planners and that sort of thing.

Here we’re looking at what’s being required. We’re talking about the nature and the depth of the information that is all going to be decided by cabinet. It’s not in this legislation, so we actually, really, can’t debate that one. But I’m wondering if what we’re really talking about is simply centralized planning process, and that’s what it’s all about.

The reality is that we have, for example, in Surrey, an area called East Clayton. East Clayton was an area that was designed by the academics. It was designed by a whole process that took a couple of years to decide. But it’s interesting that now, by the same token, that whole thing has been built out in Surrey, and it’s finished now. We can do that in ten years because of the growth in Surrey. But the reality is that we have to continually make amendments to the OCP, even with all the academics that were involved in all this, because the dynamics of what happens in the marketplace is really what decides.

Developers are not foolish enough to build housing units that nobody’s going to live in, that nobody’s going to purchase, that nobody’s going to be a part of. That’s why, just as we have right now in our OCPs, we made plans for the future. We made generalizations about it, but ultimately, it’s going to be the marketplace that decides. It’s people putting down real money to do real things, rather than dictates that are sitting in plans in the midst of somebody’s office.

Now, simply to look at the city of Surrey, I recognize a lot of this information we already have in Surrey to certain degrees and to certain levels. You know, over the last five years, North Vancouver moved into Surrey. In the next ten years, all of Richmond is going to move into Surrey. You can’t tell me exactly what those people are going to look like, what they’re going to live in and all that, as of today, because there’s a dynamic — the dynamic of our city, the dynamic of the people moving into it.

I’m really concerned about the central planning of this. It’s trying to be driven as central planning rather than working with the market in a marketplace, because that’s ultimately who builds them. That’s ultimately why you hear from this side of the House…. Those of us that have been in local government recognize that that’s what we need to do: have the infrastructure in place, so people can actually get them built and get on so people can live in them.

With that, I will note the hour, and I’ll sit down.

Hon. S. Robinson: It’s always interesting to listen to the diversity of opinions, but I have to say that I’m actually quite disappointed in terms of making sure that we had a robust and thoughtful debate here on the second reading.

It’s disappointing that some members don’t really see the value of having good data, the value that it brings to the OCP, which right now is not required to have a detailed analysis of the kind of housing stock that you currently have, does not require any local government to report out on what kind of housing is needed going into the future. That’s just a little bit disappointing.

With that, I do appreciate that we are moving this forward as part of our 30-point plan, and I’d like to move second reading of Bill 18.

Motion approved.

[6:25 p.m.]

Hon. S. Robinson: I move that the bill be referred to a Committee of the Whole House to be considered at the next sitting after today.

Bill 18, Local Government Statutes (Housing Needs Reports) Amendment Act, 2018, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

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

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

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

The House adjourned at 6:26 p.m.